Juarez v. Crews

UMNIIDTEDDL ES TDAISTTERS IDCITS TORFI FCLTO CROIDURAT

TAMPA DIVISION

NOE JUAREZ,

Applicant,

v. CASE NO. 8:14-cv-65-SDM-TGW

SECRETARY, Department of Corrections,

Respondent.

____________________________________/

ORDER

Juarez applies under 28 U.S.C. § 2254 for a writ of habeas corpus (Doc. 1) and

challenges his convictions for manslaughter, driving under the influence, driving

with a suspended license, and giving false information to a law enforcement officer,

for which Juarez is imprisoned for twenty years. Numerous exhibits (“Respondent’s

Exhibit ___”) support the response. (Doc. 15) The respondent concedes the

application’s timeliness (Doc. 15 at 12) but argues that some grounds are

procedurally barred. (Doc. 15 at 19, 21)

I. BACKGROUND1

On April 17, 2007, Tara Unger traveled from North Port to Tampa to pick up

her husband. During Unger’s return to North Port, Juarez’s car crashed into Unger’s

car, killing Unger’s husband and seriously and permanently injuring Unger.

1 This summary of the facts derives from the briefs on direct appeal. (Respondent’s Exhibits

15 and 16).

A highway patrol trooper found Juarez’s car about a quarter of a mile from

Unger’s car. The trooper found Juarez about seventy-five feet from his car in a

wooded area with cuts on both his head and his finger. A horizontal gaze nystagmus

test suggested that Juarez was intoxicated, and a forensic toxicologist determined

that when the crash occurred Juarez’s blood alcohol level was between 0.139 and

0.140. Four unopened beer bottles, an empty beer bottle, a broken beer bottle, and

beer bottle caps appeared on the floor of the front passenger seat in Juarez’s car.

Based on tire marks at the scene, a highway patrol corporal determined that Juarez’s

car struck the left rear bumper of Unger’s car and caused Unger’s car to flip. The

impact ejected Unger from the car and hurled her over one hundred feet.

After waiving his Miranda rights, Juarez admitted that he was driving but

claimed that Unger suddenly swerved her car in front of his car and caused the crash.

Juarez further claimed that earlier that day he drank only two bottles of beer.

II. EXHAUSTION AND PROCEDURAL DEFAULT

The respondent argues that ground two and ground three in the application

are procedurally barred from federal review because Juarez failed to exhaust the

claims. (Doc. 15 at 19–22) “[E]xhaustion of state remedies requires that petitioners

‘fairly presen[t]’ federal claims to the state courts in order to give the State the

‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal

rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard v. Connor,

404 U.S. 270, 275 (1971)). “To provide the State with the necessary ‘opportunity,’

the prisoner must ‘fairly present’ his claim in each appropriate state court (including

a state supreme court with powers of discretionary review), thereby alerting that

court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004)

(citing Henry, 513 U.S. at 365–66).

Ground Two:

Juarez asserts that the trial court violated his federal right to a fair trial by

denying his motion to prohibit the jurors from viewing a monument at the

courthouse dedicated to the victims of crimes. (Doc. 1 at 6) The respondent argues

the claim is unexhausted because Juarez presented the claim on direct appeal under

state law and not as the violation of a federally protected right. (Doc. 15 at 19–20)

However, on direct appeal, Juarez asserted that the trial court violated “the right to a

fair trial guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United

States Constitution.” (Respondent’s Exhibit 15 at 44) Consequently, ground two is

exhausted.

Ground Three:

Juarez asserts that trial counsel deficiently performed by advising him not to

testify at trial. (Doc. 1 at 7) The respondent argues that the claim is unexhausted

because in his motion for post-conviction relief Juarez did not allege that trial

counsel advised him not to testify. (Doc. 15 at 22) In his motion for post-conviction

relief Juarez alleged that “[c]ounsel told him that his language barrier would not

appeal to the jury, and [the jury] may misunderstand some of his factual testimony

and find him guilty.” (Respondent’s Exhibit 18 at 3) Juarez alleged that “[he] did

not testify — only because of misadvice of counsel.” (Respondent’s Exhibit 18 at 5)

Because in the motion for post-conviction relief Juarez alleged that trial counsel

advised him not to testify, ground three is exhausted. Kelley v. Sec’y, Dep’t Corrs.,

377 F.3d 1317, 1344 (11th Cir. 2004) (“We recognize that habeas petitioners are

permitted to clarify the arguments presented to the state courts on federal collateral

review provided that those arguments remain unchanged in substance.”).

III. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 governs this

proceeding. Wilcox v. Fla. Dep’t Corrs., 158 F.3d 1209, 1210 (11th Cir. 1998). Section

2254(d), which creates a highly deferential standard for federal court review of a state

court adjudication, states:

An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not

be granted with respect to any claim that was adjudicated on

the merits in State court proceedings unless the adjudication of

the claim —

resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or

resulted in a decision that was based on an

unreasonable determination of the facts in light

of the evidence presented in the State court

proceeding.

Williams v. Taylor, 529 U.S. 362, 412–13 (2000), explains this deferential

standard:

In sum, § 2254(d)(1) places a new constraint on the power of

a federal habeas court to grant a state prisoner’s application for

a writ of habeas corpus with respect to claims adjudicated on

the merits in state court. . . . Under the “contrary to” clause,

a federal habeas court may grant the writ if the state court

a question of law or if the state court decides a case differently

than this Court has on a set of materially indistinguishable

facts. Under the “unreasonable application” clause, a federal

habeas court may grant the writ if the state court identifies the

correct governing legal principle from this Court’s decisions but

unreasonably applies that principle to the facts of the prisoner’s

case.

“The focus . . . is on whether the state court’s application of clearly established

federal law is objectively unreasonable, . . . an unreasonable application is different

from an incorrect one.” Bell v. Cone, 535 U.S. 685, 694 (2002). “As a condition for

obtaining habeas corpus from a federal court, a state prisoner must show that the

state court’s ruling on the claim being presented in federal court was so lacking in

justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.” Harrington v. Richter,

562 U.S. 86, 103 (2011). The phrase “clearly established Federal law” encompasses

only the holdings of the United States Supreme Court “as of the time of the relevant

state-court decision.” Williams, 529 U.S. at 412.

“[AEDPA] modified a federal habeas court’s role in reviewing state prisoner

applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court

convictions are given effect to the extent possible under law.” Cone, 535 U.S. at 693.

“AEDPA prevents defendants — and federal courts — from using federal habeas

corpus review as a vehicle to second-guess the reasonable decisions of state courts.”

Renico v. Lett, 559 U.S. 766, 779 (2010). Cullen v. Pinholster, 563 U.S. 170, 181 (2011)

(“This is a ‘difficult to meet,’ and ‘highly deferential standard for evaluating

state-court rulings, which demands that state-court decisions be given the benefit of

the doubt[.]’”) (citations omitted).

When the last state court to decide a federal claim issues an explanatory and

reasoned opinion, a federal habeas court reviews the specific reasons in the opinion

and defers to those reasons if they are reasonable. Wilson v. Sellers, 584 U.S. 122, 125

(2018). When the relevant state-court decision is not accompanied with reasons for

the decision, the federal court “should ‘look through’ the unexplained decision to the

last related state-court decision that does provide a relevant rationale [and] presume

that the unexplained decision adopted the same reasoning.” Wilson, 584 U.S. at 125.

A respondent may contest “the presumption by showing that the unexplained

affirmance relied or most likely did rely on different grounds than the lower state

court’s decision . . . .” Wilson, 584 U.S. at 125–26.

In per curiam decisions without a written opinion the state appellate court

affirmed the denial of Juarez’s federal claims on direct appeal and the denial of his

Rule 3.850 motion. (Respondent’s Exhibits 17 and 24) A state appellate court’s

per curiam decision without a written opinion warrants deference under Section

2254(d)(1). Wright v. Sec’y, Dep’t Corrs., 278 F.3d 1245, 1254 (11th Cir. 2002).

Richter, 562 U.S. at 99 (“When a federal claim has been presented to a state court

and the state court has denied relief, it may be presumed that the state court

adjudicated the claim on the merits in the absence of any indication or state-law

procedural principles to the contrary.”).

As Pinholster explains, 563 U.S. at 181–82, review of the state court decision is

limited to the state court record:

We now hold that review under § 2254(d)(1) is limited to the

record that was before the state court that adjudicated the claim

on the merits. Section 2254(d)(1) refers, in the past tense, to

a state-court adjudication that “resulted in” a decision that was

contrary to, or “involved” an unreasonable application of,

established law. This backward-looking language requires an

examination of the state-court decision at the time it was made.

It follows that the record under review is limited to the record

in existence at that same time, i.e., the record before the state

court.

“[A] determination of a factual issue made by a State court shall be presumed to be

correct.” 28 U.S.C. § 2254(e)(1). Juarez bears the burden of rebutting that

presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The

presumption applies to a finding of fact but not to a mixed determination of law and

fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir. 2001). Juarez’s federal application

presents the same grounds that he presented to the state court. The state court’s

rejection of Juarez’s claims warrants deference in this federal action. (Respondent’s

Exhibits 5, 19, and 22)

IV. ISSUES ON DIRECT APPEAL

Ground One:

Juarez asserts that the trial court unreasonably applied Miranda v. Arizona,

384 U.S. 436 (1966), and Kastigar v. United States, 406 U.S. 441 (1972), by denying his

motion to suppress his statements to a police officer at the scene of the crash.

(Doc. 1 at 4–5) The trial court denied the claim as follows (Respondent’s Exhibit 5

at 1–5):

suppress statements filed pursuant to Florida Rule of Criminal

Procedure 3.190(i) [and] Motion to Suppress Physical Evidence

and Statements [in] violation of international treaties pursuant

to Florida Rule of Criminal Procedure 3.190(h). The court held

hearings on the Defendant’s motions on April 15, 2008, and

May 7, 2008. The court has carefully considered the motion,

testimony introduced at the evidentiary hearing, argument of

counsel, reviewed the court file, and is otherwise duly advised

in the premises.

The court heard testimony from five witnesses at the hearing.

Trooper George Yock, fire paramedic Kristi Halvorson, North

Port Police Officer Curry, Florida Highway Patrol Corporal

David Staley, along with the Defendant, Mr. Juarez, testified.

After a careful review of the testimony and the law, the court

finds that the Defendant’s motions should be denied. First, with

respect to the Defendant’s motion to suppress statements, the

court finds that the Defendant’s claim that his statements were

not voluntary and intelligent because he did not have sufficient

understanding of the English language is without merit. All the

credible testimony established that the Defendant, although his

command of the English language does not qualify him as

fluent in English, could understand English and answer

questions sufficiently in English. Specifically, Trooper Yock

testified that the Defendant told him that he had dropped his

wife off at work prior to the accident, and Ms. Halvorson

testified that the Defendant understood and appropriately

answered several health-related questions regarding the pain in

his head and the cut on his finger. Additionally, Ms. Halvorson

testified that if there was a serious language barrier with the

Defendant, she would have noted that in her report, which she

testified she did not. Additionally, the court would note that

during the Defendant’s own testimony, it appeared to the court

that the Defendant had a selective understanding of English

and, therefore, his testimony regarding his lack of

understanding of the Miranda warnings and the waiver of his

rights appears not to be credible.

. . .

Finally, the court rejects the Defendant’s claim that Corporal

Staley employed the question first method condemned in

Missouri v. Seibert, 542 U.S. 600 (2004), as the record does not

reflect that Corporal Staley’s interrogation was calculated to

(Kennedy, J., concurring).

Miranda, 384 U.S. at 444, holds that “the prosecution may not use statements,

whether exculpatory or inculpatory, stemming from custodial interrogation of the

defendant unless it demonstrates the use of procedural safeguards effective to secure

the privilege against self-incrimination.” Before any questioning, the defendant must

be informed that he has the right to remain silent, his statement can be used as

evidence against him, and he has the right to have a retained or appointed attorney

present. Miranda, 384 U.S. at 444–45. “Custodial interrogation” means

“questioning initiated by law enforcement officers after a person has been taken into

custody or otherwise deprived of his freedom of action in any significant way.”

Miranda, 384 U.S. at 444. If the defendant indicates that either he wants to consult

an attorney or that he does not want to participate in an interrogation, police must

not question him. Miranda, 384 U.S. at 444–45.

Statements to Trooper George Yock

Trooper Yock testified that he arrived at the scene of the crash, found Juarez’s

car about a quarter mile away from Unger’s car, and observed Juarez lying in a fetal

position next to a tree in woods about one hundred feet from his car. (Respondent’s

Exhibit 3 at 11–14) Before directing Juarez to come out of the woods and show his

hands, Trooper Yock unholstered and pointed his gun to the ground. (Respondent’s

Exhibit 3 at 13–14) After Juarez complied, Trooper Yock returned the gun to the

holster. (Respondent’s Exhibit 3 at 13–14) Trooper Yock, who was responsible for

investigating the crash, patted Juarez’s clothes to check for weapons and asked

Juarez questions related to his investigation. (Respondent’s Exhibit 3 at 17) Also,

Trooper Yock followed the ambulance that drove Juarez to the hospital and asked

Juarez questions about his identity after paramedics secured Juarez’s body to a

stretcher. (Respondent’s Exhibit 3 at 24–25)

Because Trooper Yock neither handcuffed Juarez nor unholstered his gun

during questioning and only temporarily detained Juarez to investigate the crash, the

trooper’s interrogation of Juarez without informing him of his rights did not violate

Miranda. Pennsylvania v. Bruder, 488 U.S. 9, 10 (1988) (“[T]he ‘noncoercive aspect of

ordinary traffic stops prompts us to hold that persons temporarily detained pursuant

to such stops are not ‘in custody’ for the purposes of Miranda.’”) (quoting Berkemer v.

McCarty, 468 U.S. 420, 440 (1984)). California v. Beheler, 463 U.S. 1121, 1125 (1983)

(“[T]he ultimate inquiry is simply whether there is a ‘formal arrest or restraint on

freedom of movement’ of the degree associated with a formal arrest.”) (quoting

Oregon v. Mathiason, 429 U.S. 492, 495 (1977)). Cruz v. Miller, 255 F.3d 77, 86

(2d Cir. 2001) (“Several courts have ruled that an initial display of guns,

subsequently reholstered, does not result in ‘custody’ that requires Miranda

warnings.”) (citing United States v. Jones, 21 F.3d 165, 170 (7th Cir. 1994), United

States v. Gregory, 891 F.2d 732, 735 (9th Cir. 1989), and United States v. Manbeck,

744 F.2d 360, 372 (4th Cir. 1984)).

Statements to Corporal David Staley

Corporal Staley, a traffic homicide investigator, arrived at the scene of the

crash around 2:00 A.M. and spoke with Juarez around 5:25 A.M. (Respondent’s

Exhibit 4 at 4–5) Corporal Staley used a printed form to advise Juarez of his Miranda

rights, and Juarez responded that he understood his rights. (Respondent’s Exhibit 4

at 6–7) Corporal Staley read each right again, supplemented his second recitation of

each right with short and simple words in English to convey the meaning of each

right, and confirmed that Juarez understood each right. (Respondent’s Exhibit 4 at

7–9) After acknowledging that he understood each right, Juarez agreed to speak

with Corporal Staley. (Respondent’s Exhibit 4 at 8–9) Juarez never claimed that he

did not speak English or that he did not understand the rights. (Respondent’s

Exhibit 4 at 9) After waiving his Miranda rights, Juarez explained in detail how the

crash occurred. (Respondent’s Exhibit 4 at 10)

Juarez, who was twenty-two, testified that he was born in Mexico and had

lived in the United States for fifteen years. (Respondent’s Exhibit 4 at 25–26) Juarez

denied understanding his Miranda rights and claimed that he asked Corporal Staley

for an interpreter. (Respondent’s Exhibit 4 at 26–27)

The post-conviction court determined that Juarez did not credibly testify about

his inability to understand the Miranda rights and the consequences of waiving his

rights, and a post-conviction court’s credibility determination receives deference in

federal court. Nejad v. Att’y Gen., State of Ga., 830 F.3d 1280, 1292 (11th Cir. 2016)

(“‘Federal habeas courts have no license to redetermine credibility of witnesses

whose demeanor has been observed by the state trial court, but not by them.’”)

(quoting Consalvo v. Sec’y, Dep’t Corrs., 664 F.3d 842, 845 (11th Cir. 2011)).

Trooper Yock testified that Juarez understood English. (Respondent’s Exhibit

3 at 12–13) Juarez complied with the trooper’s directions, denied that he possessed a

weapon, gave the trooper permission to pat his clothing, told the trooper his name,

and told the trooper that he kept his identification in his wallet. (Respondent’s

Exhibit 3 at 13–14) The trooper used short and simple words in English, and Juarez

understood. (Respondent’s Exhibit 3 at 15, 19) Juarez told the trooper that he drove

his wife to work, remained in the outside lane of the highway when returning home,

and swerved when he saw lights. (Respondent’s Exhibit 3 at 16–17) Juarez

complied with the trooper’s instructions when the trooper administered a horizontal

gaze nystagmus test. (Respondent’s Exhibit 3 at 34–36)

Also, Kristi Halvorson, a paramedic, testified that Juarez understood English.

(Respondent’s Exhibit 3 at 53) Juarez spoke with a strong accent but understood

questions in English and responded appropriately. (Respondent’s Exhibit 3 at 53)

Juarez told the paramedic about a cut on his finger and a painful bump on the back

of his head. (Respondent’s Exhibit 3 at 54–55) Juarez denied feeling dizzy or weak,

denied suffering from shortness of breath, denied pain in his chest or abdomen, and

denied blurred vision, numbness, and experiencing a loss of consciousness.

(Respondent’s Exhibit 3 at 55–63) Juarez took deep breaths when the paramedic

listened to his lungs and squeezed the paramedic’s hands when the paramedic tested

his strength. (Respondent’s Exhibit 3 at 57–58) Juarez stated that he did not

understand only when the paramedic asked why he walked into the woods after the

crash. (Respondent’s Exhibit 3 at 63–64)

Because Corporal Staley informed Juarez of his Miranda rights in English,

because Juarez told Corporal Staley that he understood those rights, and because the

record demonstrates that Juarez understood and spoke English, the post-conviction

court did not unreasonably apply Miranda by determining that Juarez knowingly and

voluntarily waived his rights.

Kastigar

Juarez asserts that the trial court unreasonably applied Kastigar. (Doc. 1 at 5)

Kastigar, 406 U.S. at 442, addressed:

[W]hether the United States Government may compel

testimony from an unwilling witness, who invokes the Fifth

Amendment privilege against compulsory self-incrimination, by

conferring on the witness immunity from use of the compelled

testimony in subsequent criminal proceedings, as well as

immunity from use of evidence derived from the testimony.

In Kastigar, 406 U.S. at 442, 448–49, the defendants, who invoked their Fifth

Amendment right against self-incrimination, refused to testify before a grand jury

after a prosecutor offered use and derivative use immunity. Kastigar, 406 U.S. at 453,

held that “immunity from use and derivative use is coextensive with the scope of the

privilege against self-incrimination, and therefore is sufficient to compel testimony

over a claim of the privilege.”

In his motion to suppress, Juarez asserted that police violated his Fifth

Amendment right against self-incrimination by both compelling him, under Section

316.062, Florida Statutes, to provide information concerning the crash and

interrogating him without advising him of his Miranda rights. (Respondent’s Exhibit

2 at 4–5) In the order denying the motion, the trial court failed to rule on the

compulsion claim based on Section 316.062 and instead ruled only on the claim

based on Miranda. (Respondent’s Exhibit 5)

However, at trial, trial counsel renewed the compulsion claim, and the trial

court denied the claim as follows (Respondent’s Exhibit 8 at 328–29):

[Trial counsel:] At this time, Your Honor, I’m going to

make, with the Court’s permission, a

continuing objection to all statements that

Mr. Juarez is alleged to have made based

on my previously filed motions including,

Your Honor, the fact that my position is

this is accident report privilege and I don’t

think there’s been — it’s been established

that he left the scene. I don’t think it’s

been established to the degree that these

incriminating statements that he’s — that

they cannot be used against him under the

accident report privilege [and] come in.

[Prosecutor:] Your Honor, the case law which defense

counsel has had an opportunity to argue

on motions to suppress, which have been

denied — the case law is clear that your

accident report privilege is waived if you

leave the scene of a [crash]. I didn’t bring

the case law here today because I didn’t

think that this was going to be an issue

since we had already had our hearings.

[Trial court:] When did you previously raise that issue?

[Trial counsel:] In my written motion I did.

[Prosecutor:] Your Honor’s prior ruling was, all his

statements come in.

[Trial court:] All right. I’m going to allow the

continuing objection but I’ll overrule your

objection.

[Prosecutor:] Thank you, Judge.

Because the trial court adjudicated the claim on the merits, Juarez must

demonstrate that the trial court either ruled contrary to or unreasonably applied

“clearly established federal law as determined by the United States Supreme Court.”

28 U.S.C. § 2254(d)(1). “‘[C]learly established Federal law’ means ‘the holdings, as

opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant

state-court decision.’” Jennings v. Sec’y, Fla. Dep’t Corrs., 55 F.4th 1277, 1292 (11th

Cir. 2022) (quoting Williams, 529 U.S. at 412).

Section 316.066(4), Florida Statutes, bars at trial the admission of a statement

by a person to a law enforcement officer who is writing a crash report:

Except as specified in this subsection, each crash report made

by a person involved in a crash and any statement made by

such person to a law enforcement officer for the purpose of

completing a crash report required by this section shall be

without prejudice to the individual so reporting. Such report or

statement may not be used as evidence in any trial, civil or

criminal. However, subject to the applicable rules of evidence,

a law enforcement officer at a criminal trial may testify as to

any statement made to the officer by the person involved in the

crash if that person’s privilege against self-incrimination is not

violated. . . .

State v. Cino, 931 So. 2d 164, 168 (Fla. 5th DCA 2006), explains that the

privilege under Section 316.066(4) is coextensive with the Fifth Amendment right

against self-incrimination:

The State also argues that the circuit court erred in holding that

section 316.066(4) bars the State from using Cino’s compelled

statements against him during its investigation, or at any

pretrial proceeding. This point merits additional discussion.

The State is correct that the statute only expressly bars the State

from using Cino’s compelled statements “at trial.” However,

the Constitution prohibits the State from making any use of

Cino’s compelled statements against him, either directly or

derivatively. See Kastigar v. United States, 406 U.S. 441 (1972).

is to ensure that the state does not violate an individual’s

constitutional privilege against self-incrimination when he or

she is compelled to truthfully report to law enforcement the

facts surrounding an automobile accident. See Brackin v. Boles,

452 So. 2d 540, 544 (Fla. 1984). Consequently, our Supreme

Court has held that the statute “clothe[s] with statutory

immunity only such statements and communications as the

driver, owner, or occupant of a vehicle is compelled to make in

order to comply with his or her statutory duty under Section

316.066(1) and (2).” Id. Similarly, we believe it is obvious that

the protection provided by Section 316.006(4) must be read as

co-extensive with the constitutional privilege against

self-incrimination. In other words, when the driver, owner or

occupant of a vehicle is compelled to make statements in order

to comply with his or her statutory duty, the immunity

provided by Section 316.006(4) is equivalent to that required by

the Fifth Amendment. See Tyne v. Time Warner Entm’t Co.,

901 So. 2d 802, 810 (Fla. 2005) (noting that courts have “an

obligation to give a statute a constitutional construction where

such a construction is possible”). For this reason, we believe

that the accident report privilege must be read as having barred

law enforcement from making any use of statements compelled

from Cino, as part of its accident investigation, that would

violate Cino’s privilege against self-incrimination.

Trooper Yock testified that he arrived at the scene of the crash, found Juarez’s

car about a quarter mile away from Unger’s car, and observed Juarez lying in a fetal

position and hiding behind a small tree in woods about one hundred feet from his

car. (Respondent’s Exhibit 3 at 11–14) The trial court denied Juarez’s motion to

suppress his statements to Trooper Yock during the traffic investigation because

Juarez left the scene of the crash. Williams v. State, 208 So. 3d 196, 197 (Fla. 3d

DCA 2016) (“[T]he accident privilege in section 316.066(4) does not confer any

benefit or privilege on a person who abandons her duty to remain at the scene of any

automobile accident which results in death, and who chooses instead to leave the

scene of an accident . . . .”) (citing Cummings v. State, 780 So. 2d 149 (Fla. 2d DCA

2000)).

White v. Woodall, 572 U.S. 415, 426–27 (2014), clarifies that Section 2254(d)(1)

does not require a state court to extend a holding by the United States Supreme

Court to new facts:

[T]his Court has never adopted the unreasonable-refusal-to-

extend rule on which respondent relies. It has not been so much

as endorsed in a majority opinion, let alone relied on as a basis

for granting habeas relief. To the extent the unreasonable-

refusal-to-extend rule differs from the one embraced in Williams

and reiterated many times since, we reject it. Section 2254(d)(1)

provides a remedy for instances in which a state court

unreasonably applies this Court’s precedent; it does not require

state courts to extend that precedent or license federal courts to

treat the failure to do so as error. See Scheidegger, Habeas

Corpus, Relitigation, and the Legislative Power, 98 Colum. L. Rev.

888, 949 (1998). Thus, “if a habeas court must extend a

rationale before it can apply to the facts at hand,” then by

definition the rationale was not “clearly established at the time

of the state-court decision.” Yarborough, 541 U.S. at 666.

AEDPA’s carefully constructed framework “would be

undermined if habeas courts introduced rules not clearly

established under the guise of extensions to existing law.” Ibid.

This is not to say that § 2254(d)(1) requires an “‘identical

factual pattern before a legal rule must be applied.’” Panetti v.

Quarterman, 551 U.S. 930, 953 (2007). To the contrary, state

courts must reasonably apply the rules “squarely established”

by this Court’s holdings to the facts of each case. Knowles v.

Mirzayance, 556 U.S. 111, 122 (2009). “[T]he difference

between applying a rule and extending it is not always clear,”

but “[c]ertain principles are fundamental enough that when

new factual permutations arise, the necessity to apply the

earlier rule will be beyond doubt.” Yarborough, [541 U.S.]

at 666. The critical point is that relief is available under

§ 2254(d)(1)’s unreasonable-application clause if, and only if, it

is so obvious that a clearly established rule applies to a given set

of facts that there could be no “fairminded disagreement” on

the question, Harrington, 562 U.S. at [103].

Because Kastigar does not address whether unlawful conduct waives statutory

immunity, the trial court neither ruled contrary to nor unreasonably applied the

opinion. Nance v. Warden, Ga. Diag. Prison, 922 F.3d 1298, 1304 (11th Cir. 2019)

(“A state court’s decision cannot be contrary to, or involve an unreasonable

application of, ‘clearly established Federal law, as determined by the Supreme

Court,’ 28 U.S.C. § 2254(d)(1), unless there is a Supreme Court decision on point.”).

Ground one is denied.

Ground Two:

Juarez asserts that the trial court denied his federal right to a fair trial by

denying his motion to prohibit the jurors from viewing a monument outside the

courthouse dedicated to victims of crime. (Doc. 1 at 6) Before trial, the trial court

acknowledged an earlier ruling on Juarez’s motion (Respondent’s Exhibit 8

at 15–16):

[Trial counsel:] Your Honor, just three matters. Number

one, I don’t know if the court has actually

issued a written order regarding the

victim’s monument motion that we

addressed on May 5th.

[Trial court:] I don’t know. I think I did it on one case.

[Trial counsel:] It was on Haas, and then I think the court

was going to go ahead and include Noe

Juarez.

[Trial court:] I will go ahead and do that. I denied the

motion, but I will go ahead and enter a

written order, but for the record at this

point, I will just say this, that it is denied.

The trial court’s written order denying the motion contains no reasons:

This matter is before the court on Defendant’s Motion in

Limine to Prevent Juror Contact with “Victims’ Monument.”

The court held a hearing on the Defendant’s motion on May 7,

2008. The court has carefully considered the motion, argument

of counsel, reviewed the court file, and is otherwise duly

advised in the premises.

The Defendant’s motion is denied for the reasons given in open

court on the record.

A transcript of the hearing on May 7, 2008, contains no ruling on the motion.

(Respondent’s Exhibit 4) Because the record demonstrates that the trial court

adjudicated the motion on the merits but contains no reasons for the ruling, Juarez

must demonstrate that no reasonable basis supports the denial of relief. Richter,

562 U.S. at 98 (“Where a state court’s decision is unaccompanied by an explanation,

the habeas petitioner’s burden still must be met by showing there was no reasonable

basis for the state court to deny relief.”).

Juarez’s motion to prohibit the jurors from viewing the monument alleged the

following facts (Respondent’s Exhibit 6 at 1–2):

The Defendant is charged with aggravated DUI manslaughter

and DUI with serious bodily injury. Approximately eight years

ago, the monument was placed in front of the courthouse where

the Defendant’s trial is scheduled to take place. The monument

is within several feet of the steps to the courthouse.

The monument consists of a magnolia tree. Under the tree is a

large stone and metal plaque with the inscription:

“Justice will only be achieved when those who

are not injured by crime feel as indignant as those

who are.”

2 See Order Denying Defendant’s Motion in Limine to Prevent Juror Contact with “Victims’

Monument,” State v. Juarez, No. 07-CF-7715 (Fla. 12th Jud. Cir. May 19, 2008).

The inscription credits the quote to Solomon.

Individuals are able to place messages inscribed in bricks that

surround the tree and stone. The vast majority of the numerous

messages on the bricks concern the subject of deceased friends

or family members. Several of the messages on the bricks

contain the names of decedents in highly publicized local

murder cases. Several of the messages contain statements of

family members missing the deceased individuals.

Three benches are directly next to the monument. The benches

surround the monument on three sides. The benches face the

monument. At least one of the benches has an ashtray next to

it.

The monument and the area directly next to the monument

[are] well known as a regular gathering place for jurors and

prospective jurors who are called to service at the courthouse —

especially those jurors and prospective jurors who smoke. The

monument is positioned in such a way that a large amount of

foot traffic entering the courthouse must travel very close the

monument.

At a hearing, trial counsel introduced into evidence photographs of the magnolia

tree, the plaque, the benches, and the bricks. (Respondent’s Exhibit 7)

“Due process requires that the accused receive a trial by an impartial jury free

from outside influences.” Sheppard v. Maxwell, 384 U.S. 333, 362 (1966). However,

“since ‘it is virtually impossible to shield jurors from every contact or influence that

might theoretically affect their vote . . . due process does not require a new trial every

time a juror has been placed in a potentially compromising situation.’” United States

v. Rowe, 906 F.2d 654, 656 (11th Cir. 1990) (quoting Smith v. Phillips, 455 U.S. 209,

217 (1982)). “To establish a violation of his right to a fair trial, [the defendant]

initially ‘ha[s] the burden of making a colorable showing that [jury] exposure ha[d],

in fact, occurred.’” United States v. Alexander, 782 F.3d 1251, 1258 (11th Cir. 2015)

(quoting United States v. Siegelman, 640 F.3d 1159, 1182 (11th Cir. 2011)).

Because Juarez failed to demonstrate that a juror visited the monument and

that prejudice resulted from the visit, the trial court did not unreasonably deny the

fair trial claim. Rowe, 906 F.2d at 656 (“Prejudice is not presumed. The defendant

has the burden of demonstrating prejudice by a preponderance of credible evidence.

‘Such prejudice may be shown by evidence that extrinsic factual matter tainted the

jury’s deliberations.’”) (citation omitted). Ground two is denied.

V. INEFFECTIVE ASSISTANCE OF COUNSEL

Juarez claims ineffective assistance of counsel, a difficult claim to sustain.

“[T]he cases in which habeas petitioners can properly prevail on the ground of

ineffective assistance of counsel are few and far between.” Waters v. Thomas,

46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384,

386 (11th Cir. 1994)). Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998),

explains that Strickland v. Washington, 466 U.S. 668, 687 (1984), governs an

ineffective assistance of counsel claim:

The law regarding ineffective assistance of counsel claims is

well settled and well documented. In Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the

Supreme Court set forth a two-part test for analyzing ineffective

assistance of counsel claims. According to Strickland,

First, the defendant must show that counsel’s

performance was deficient. This requires showing

that counsel made errors so serious that counsel

was not functioning as the “counsel” guaranteed

the defendant by the Sixth Amendment. Second,

the defendant must show that the deficient

requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.

“There is no reason for a court deciding an ineffective assistance claim . . .

to address both components of the inquiry if the defendant makes an insufficient

showing on one.” Strickland, 466 U.S. at 697. “[C]ounsel is strongly presumed to

have rendered adequate assistance and made all significant decisions in the exercise

of reasonable professional judgment.” 466 U.S. at 690. “[A] court deciding an

actual ineffectiveness claim must judge the reasonableness of counsel’s challenged

conduct on the facts of the particular case, viewed as of the time of counsel’s

conduct.” 466 U.S. at 690. Strickland requires that “in light of all the circumstances,

the identified acts or omissions were outside the wide range of professionally

competent assistance.” 466 U.S. at 690.

Juarez must demonstrate that counsel’s alleged error prejudiced the defense

because “[a]n error by counsel, even if professionally unreasonable, does not warrant

setting aside the judgment of a criminal proceeding if the error had no effect on the

judgment.” Strickland, 466 U.S. at 691. To meet this burden, Juarez must show

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

the proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” 466 U.S. at 694.

Juarez cannot meet his burden by showing that the avenue chosen by counsel

proved unsuccessful. White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992).

Strickland cautions that “strategic choices made after thorough investigation of law

and facts relevant to plausible options are virtually unchallengeable; and strategic

choices made after less than complete investigation are reasonable precisely to the

extent that reasonable professional judgments support the limitations on

investigation.” Strickland, 466 U.S. at 690–91.

Sustaining a claim of ineffective assistance of counsel under Section 2254(d)

is very difficult because “[t]he standards created by Strickland and § 2254(d) are

both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.”

Richter, 562 U.S. at 105. Nance, 922 F.3d at 1303 (“Given the double deference due,

it is a ‘rare case in which an ineffective assistance of counsel claim that was denied

on the merits in state court is found to merit relief in a federal habeas proceeding.’”)

(quoting Johnson v. Sec’y, Dep’t Corrs., 643 F.3d 907, 911 (11th Cir. 2011)).

Because the state court rejected the grounds based on Strickland, Juarez cannot

meet the “contrary to” test in Section 2254(d)(1). (Respondent’s Exhibits 19 and 22)

Juarez instead must show that the state court either unreasonably applied Strickland

or unreasonably determined a fact. In determining “reasonableness,” Section

2254(d) authorizes determining only “whether the state habeas court was objectively

reasonable in its Strickland inquiry” and not independently assessing whether

counsel’s actions were reasonable. Putman v. Head, 268 F.3d 1223, 1244 n.17

(11th Cir. 2001). The presumption of correctness and the highly deferential standard

of review require that the analysis of each ground begin with the state court’s

analysis.

A. Grounds of IAC Before and During Trial

Ground Three:

Juarez asserts that trial counsel deficiently performed by advising him not to

testify at trial. (Doc. 1 at 7) The post-conviction court denied the claim as follows

(Respondent’s Exhibit 22 at 2):

[T]he Defendant claims that trial counsel was ineffective by

advising the Defendant not to testify at trial because of his

language barrier. The Defendant claims that he was prejudiced

because his testimony was the only testimony that could have

refuted the testimony of law enforcement. The Defendant

acknowledges on page four of the motion that the decision not

[to] testify at trial was his. Trial counsel did not advise the

Defendant not to testify. Rather, trial counsel simply made the

Defendant aware of how the jury might react to certain

circumstances. Therefore, the claim is denied.

At trial, the trial judge determined that Juarez knowingly and voluntarily

waived his right to testify (Respondent’s Exhibit 8 at 688–89)3:

[Court:] All right. Mr. Juarez, I need to ask you

some questions. You have indicated to

your attorney, and your lawyer has

indicated to me that you will not be

testifying in this case, is that correct?

[Juarez:] Yes.

[Court:] Is that your decision?

[Juarez:] Yes.

[Court:] You do understand that, under the law,

you do have the right to testify if you

wish. Do you understand that, sir?

[Juarez:] Yes.

3 At trial, the trial court provided Juarez the assistance of an interpreter. (Respondent’s

Exhibit 8 at 9–10, 117–18, 237, 739–40)

you so choose.

[Juarez:] Yes.

[Court:] And that is a decision that only you can

make, but you may ask your lawyer or

lawyers their opinions and get assistance

from them as well. Do you understand

that, sir?

[Juarez:] Yes.

[Court:] Have you discussed this matter with your

attorney?

[Juarez:] Yes.

[Court:] And have you thought about the fact that

you will not be judged upon it?

[Juarez:] Yes.

[Court:] And it is your decision, sir, not to testify?

[Juarez:] Yes, sir.

[Court:] No one has pressured you in any way to

make you make this decision?

[Juarez:] No.

[Court:] And you are doing so on your own free

will, sir?

[Juarez:] Yes.

[Court:] All right, sir. Thank you, sir.

Because Juarez acknowledged that he chose not to testify after consulting

with trial counsel, the post-conviction court did not unreasonably determine that

“trial counsel did not advise [Juarez] not to testify” and that “trial counsel simply

made the Defendant aware of how the jury might react to certain circumstances.”

(Respondent’s Exhibit 19 at 2)

Because Juarez failed to demonstrate that no competent counsel would advise

Juarez not to testify because he does not fluently speak English, the post-conviction

court did not unreasonably deny the claim. Strickland, 466 U.S. at 690 (“[C]ounsel

is strongly presumed to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.”); Chandler v. United

States, 218 F.3d 1305, 1315 (11th Cir. 2000) (“[B]ecause counsel’s conduct is

presumed reasonable, for a petitioner to show that the conduct was unreasonable,

a petitioner must establish that no competent counsel would have taken the action

that his counsel did take.”).

Also, in his motion for post-conviction relief, Juarez contended as follows that

he would have testified (Respondent’s Exhibit 18 at 3–4):

Mr. Juarez wanted to testify and tell the jury that the accident

was not his fault; he was not impaired by alcohol, and he never

fled the scene. Mr. Juarez wanted to tell the jury that he was

temporarily incoherent and shocked by the traumatic events of

the crash. Mr. Juarez wanted to tell the jury that the testimony

of law enforcement had errors, inconsistencies, and some of it

was false, fabricated lies. Mr. Juarez wanted to testify that

“yes,” the accident was tragic, “yes,” his car was involved, but

the accident was dramatically different [than what] the law

enforcement reconstructionist testified to. “It was an

‘accident.’”

. . .

Mr. Juarez wanted to testify and tell the jury that [Unger’s]

vehicle made an erratic move that impeded him and caus[ed]

the accident. Mr. Juarez could have testified to numerous facts

and events that would have changed the outcome of his trial.

A paramedic drew blood from Juarez at the scene of the crash. (Respondent’s

Exhibit 8 at 344–46, 399–403) A forensic toxicologist determined that when the

crash occurred Juarez’s blood contained an alcohol level between 0.139 and 0.140.

(Respondent’s Exhibit 8 at 583–84) This expert testimony based on physical

evidence rebuts Juarez’s proposed self-serving testimony that he was not intoxicated

when the crash occurred.

A trooper testified that he discovered Juarez’s car about a quarter of a mile

down the road from Unger’s car and observed damage to the front of the car.

(Respondent’s Exhibit 8 at 321–23) The trooper walked about seventy to

one hundred feet from Juarez’s car to a trail that led to woods and observed Juarez

about five feet into the woods lying down in a fetal position at the base of a tree.

(Respondent’s Exhibit 8 at 325–27) Both the location of Juarez’s car about a quarter

of a mile down the road from Unger’s car and the trooper’s discovery of Juarez lying

down in the woods rebut Juarez’s proposed testimony that he did not flee from the

scene of the crash.4

Lastly, the jury found Juarez guilty of manslaughter while driving under the

influence. (Respondent’s Exhibit 9) “The statutory offense of DUI manslaughter

requires proof that the defendant was operating a vehicle while legally impaired and

that the defendant’s operation of the vehicle caused or contributed to the death of the

victim.” Jones v. State, 297 So. 3d 685, 687 (Fla. 1st DCA 2020). “[T]he driver’s

4 In his motion for post-conviction relief, Juarez failed to identify the “errors, inconsistencies,

[and] false, fabricated lies” by law enforcement officers who testified at trial. (Respondent’s Exhibit

18 at 3–5)

conduct need not be the sole cause of the victim’s death to support a conviction for

DUI manslaughter.” Jones, 297 So. 3d at 687. “Rather, the State need only present

evidence to show that the driver was legally impaired, the driver was operating the

vehicle, and that the conduct of the driver contributed to the victim’s death.” Jones,

297 So. 3d at 687. “For a decedent’s conduct to constitute a defense to DUI

manslaughter, the conduct must be viewed as the sole proximate cause of an accident.”

Mizell v. State, 350 So. 3d 97, 101 (Fla. 1st DCA 2022) (italics in original).

A trooper surveyed the scene of the crash, measured the tire marks on the

road, and determined that the right front bumper of Juarez’s car struck the left rear

bumper of Unger’s car. (Respondent’s Exhibit 8 at 431–47, 491–501) The tire marks

on the road demonstrated that Juarez did not apply the brake on his car before the

crash. (Respondent’s Exhibit 8 at 426, 450) This testimony by the trooper rebuts

Juarez’s proposed lay opinion that “the accident was not his fault.” (Respondent’s

Exhibit 18 at 3–4) Because Juarez cannot demonstrate a reasonable probability that

outcome at trial would change if he testified, the post-conviction court did not

unreasonably deny the claim. Strickland, 466 U.S. at 694. Ground three is denied.

Ground Four:

Juarez asserts that trial counsel deficiently performed by not moving to strike

Juror A. and Juror M. (Doc. 1 at 8–9) He contends that Juror A. was biased

because he was both the president and the treasurer of an organization against drunk

driving. (Doc. 1 at 9) He contends that Juror M. was biased because in the hallway

outside the courtroom Unger showed pictures of her niece to Juror M. (Doc. 1 at 9)

To satisfy Strickland’s prejudice prong, a Florida court requires a defendant to

demonstrate that a juror served with “actual bias.” Carratelli v. State, 961 So. 2d 312,

324 (Fla. 2007) (“We therefore hold that where a postconviction motion alleges that

trial counsel was ineffective for failing to raise or preserve a cause challenge, the

defendant must demonstrate that a juror was actually biased.”). “Under the actual

bias standard, the defendant must demonstrate that the juror in question was not

impartial — i.e., that the juror was biased against the defendant, and the evidence of

bias must be plain on the face of the record.” Carratelli, 961 So. 2d at 324.

“Carratelli’s actual bias test is arguably consistent with Strickland.” Owen v. Fla.

Dep’t Corrs., 686 F.3d 1181, 1201 (11th Cir. 2012). See also Fennell v. Sec’y, Fla. Dep’t

Corrs., 582 F. App’x 828, 832–34 (11th Cir. 2014) (applying Carratelli’s actual bias

standard when evaluating on federal habeas whether trial counsel deficiently

performed by not moving to strike a juror for cause).

Juror A.

Juarez asserts that trial counsel deficiently performed by not moving to strike

Juror A. (Doc. 1 at 8–9) The post-conviction court denied the claim as follows

(Respondent’s Exhibit 19 at 2–3):

[T]he Defendant claims that trial counsel was ineffective by

allowing [a] biased juror[ ] on his jury panel. Specifically, the

Defendant argues that a juror admitted he was president and

treasurer of the Students Against Drunk Driving organization

at his school. This juror stated that a prior experience that

affected his school community where a school classmate was

convicted of DUI manslaughter would not stop him from being

fair. The juror further stated that he was the [ ] president and

treasurer of SADD, but that this experience would not have a

direct effect on his being a juror. The juror also stated that he

claim is denied.

During jury selection, Juror A. denied that his knowledge of his high school

classmate’s conviction for manslaughter while driving under the influence would

affect his ability to act impartially (Respondent’s Exhibit 8 at 50–51):

[Prosecutor:] Mr. [A.], did you have your hand up?

[Juror A.]: Yes. I went to high school with — I was a

little younger. He was about two years

ahead of me [and] actually was convicted

of DUI manslaughter. I wasn’t close

friends with the person, but I knew [ ]

him. It was — it affected our school

community pretty closely. I don’t think

that will affect my ability to hear the facts

at all.

[Prosecutor:] You said it affected your school

community. In what way?

[Juror A.:] It was — it’s always difficult to hear of

anyone in your community, friend or

otherwise, to go through a hardship and

everyone was aware of it. The faculty and

all the students, we were keeping track.

[Prosecutor:] So it was a topic of discussion? Talked

about it a lot?

[Juror A.:] Yes.

[Prosecutor:] But the fact that that was a fairly recent

occurrence and that it was a topic of

discussion, that’s not going to stop you

from being fair in this case?

[Juror A.:] No.

Also, Juror A. denied that his earlier participation in Students Against Drunk

Driving would affect his ability to act impartially (Respondent’s Exhibit 8 at 152–53):

anybody ever been or maybe is a current

member of MADD, Mothers Against

Drunk Driving, or Students Against

Drunk Driving. Anybody ever had

membership to that? Mr. [A.].

[Juror A.:] I was the vice president of SADD.

[Trial counsel:] Of SADD?

[Juror A.:] Yes. And treasurer.

[Trial counsel:] And how long did that membership last?

[Juror A.:] That was my sophomore year [as]

treasurer and then junior I was —

[Trial counsel:] Let me ask you, do you think holding that

position would have any effect on you

being a juror in this case?

[Juror A.:] I don’t think it will have a direct effect. It

was more of [an] organization at school. It

wasn’t very robust. We had a pretty small

membership, and I don’t think it will

affect me in any way other than having

just facts and college in my background.

Because Juror A. denied that his knowledge of his classmate’s conviction and

his participation in SADD would affect his ability to act impartially, a motion to

strike Juror A. for cause would not succeed, and the post-conviction court did not

unreasonably deny the claim. Fleming v. State, 366 So. 3d 1179, 1182 (Fla. 1st DCA

2023) (“A cause challenge is appropriate when a potential juror cannot be impartial.

Prospective jurors must be excused if a reasonable doubt exists as to whether the

juror possesses an impartial state of mind.”) (citing § 913.03(10), Fla. Stat.)).

Juror M.

Juarez asserts that trial counsel deficiently performed by not moving to strike

Juror M. (Doc. 1 at 8–9) The post-conviction court denied the claim as follows

(Respondent’s Exhibit 19 at 2–3):

[T]he Defendant claims that trial counsel was ineffective by

allowing [a] biased juror[ ] on his jury panel. . . . [T]he

Defendant claims that [a] juror was observed sitting in a

hallway outside the courtroom with a victim. The court

questioned the victim, who testified that she talked about and

was looking at pictures of her niece on her birthday with her

mother-in-law, while a juror was present. Therefore, this claim

is denied.

During jury selection, outside the presence of potential jurors, the trial judge

asked Tara Unger about her conversation with Juror M. (Respondent’s Exhibit 8

at 116–18):

[Prosecutor #1:] We were leaving the courtroom. I know

there was one juror still out in the

hallway. And then when Ms. Unger, the

victim, came out in the hallway, she was

sitting next to him for a moment and

I don’t know if she was going through

pictures or something, but just —

[Prosecutor #2:] Not photographs of the crime scene or

anything.

[Trial counsel:] That was on Mr. [M.]?

[Prosecutor #2:] Correct, Mr. [M.]

[Prosecutor #1:] If we could just —

[Prosecutor #2:] Just ask him if he —

[Prosecutor #1:] Ask him questions just to make sure.

[Trial counsel:] He was the last person, right?

planted himself there.

[Court:] What was she doing?

[Prosecutor #2:] [W]as just leaving, Your Honor.

[Court:] She was looking at pictures?

[Prosecutor #1:] I don’t know what she was doing.

I honestly don’t know what. But I would

just like to clear it with the juror that he

didn’t see anything or hear. I don’t know

what the discussion was.

[Court:] Did you ask what the discussion was?

[Prosecutor #2:] No, I didn’t, Your Honor.

[Court:] Let me ask —

[Prosecutor #2:] All right.

[Court:] — Ms. Unger. Ms. Unger, not a big deal,

but I need to inquire of you, when you

were leaving, there was a juror out in the

hallway who was waiting. You can sit

down. You don’t have to get up.

[Unger:] Yes, Your Honor, there was a juror out in

the hallway —

. . .

[Court:] Sorry, ma’am, go ahead. You can just sit

and tell us. There was a juror there. We

just need to make sure nothing was heard.

[Unger:] There was a juror there. I wasn’t sure that

he was one of the jurors that were in here.

[Court:] That’s fine.

[Unger:] And I was sitting next to him out there,

and the only thing that we had talked

about, my mother-in-law was showing me

some photos of my niece on her birthday.

[Court:] Okay. Did you all say anything that —

[Unger:] No. That was it.

[Court:] All right. Did you want to ask her any

questions?

[Trial counsel:] No, Your Honor.

[Court:] Do you want me to bring in that juror or

not? It’s up to you.

[Trial counsel:] Well, no, I don’t think so, based on what

Ms. Unger’s represented.

Because the record fails to demonstrate that Juror M.’s conversation with

Unger about photographs of her niece affected Juror M.’s ability to act impartially,

a motion to strike Juror M. would not succeed, and the post-conviction court did not

unreasonably deny the claim. Fleming, 366 So. 3d at 1182 (citing § 913.03(10),

Fla. Stat.)). Ground four is denied.

Ground Five:

Juarez asserts that trial counsel deficiently performed by not obtaining a video

recording that contained an interview of two persons who witnessed the crash.

(Doc. 1 at 10) He contends that a police officer told trial counsel and the prosecutor

that the video recording existed, that trial counsel failed to obtain the video

recording, and that the prosecutor violated Brady v. Maryland, 373 U.S. 83 (1963),

by failing to disclose the video recording to the defense. (Doc. 1 at 10) The post-

conviction court denied the claim as follows (Respondent’s Exhibit 19 at 3) (state

court record citations omitted):

fail[ing] to locate or discover a law enforcement videotape of a

witness to the accident. The Defendant claims that Officer

Kindervater testified that the State and defense counsel were

both given information about the whereabouts of the tape, and

that both were going to investigate it. At trial, defense counsel

questioned Kindervater regarding his patrol vehicle, equipped

with [ ] video and audio recording equipment. Kindervater

testified he was not aware of the location of the videotape.

Kindervater stated that he was unaware if the videotape was

saved. Defense counsel thoroughly questioned Kindervater

about the whereabouts of the videotape, and Kindervater stated

that he was not certain if the tape still existed. Therefore, this

claim is denied.

At trial, a police officer testified that he arrived at the scene of the crash in a

police car equipped with a video camera (Respondent’s Exhibit 8 at 288–90):

[Trial counsel:] Now, Officer, patrol vehicle — the patrol

vehicles of the North Port Police

Department are equipped with [ ] video

and audio recording equipment, correct?

[Officer:] Yes, sir, that is correct.

[Trial counsel:] And your car is a patrol vehicle that you

were driving that night, correct?

[Officer:] Yes, sir.

[Trial counsel:] So it was installed — it had installed in it

the video and audio recording —

[Officer:] Yes, sir.

[Trial counsel:] — equipment?

[Officer:] Yes, sir.

[Trial counsel:] And the video equipment, it is a view

frontwards over the hood in front of the

windshield, correct?

[Officer:] Yes, sir.

conjunction with a microphone that’s on

the officer’s person, correct?

[Officer:] Yes, sir.

[Trial counsel:] And that microphone, if a patrol vehicle, a

patrol officer were to walk away some

distance from the car, would still be

recorded on the audio portion of the

videotape, correct?

[Officer:] Yes, sir.

[Trial counsel:] When you arrived on the scene, you had

your video and audio recording

equipment running, correct?

[Officer:] Yes, sir.

[Trial counsel:] And it would be fair to say that on that

video and audio recording, the images of

the African American couple’s vehicle

would have been captured on that by the

tape?

[Officer:] Yes, sir.

[Trial counsel:] And they themselves would have been

captured on the tape, correct?

[Officer:] Yes, sir.

The officer denied knowing whether a video recording of the scene of the

crash existed (Respondent’s Exhibit 8 at 292–94):

[Trial counsel:] All right. It’s fair to say that you do not

know the location of that videotape that

was running in your car that night?

[Officer:] Yes, that’s correct.

[Trial counsel:] Okay. The tape was not saved, correct?

[Officer:] I don’t recall if the tape was saved for that

particular incident, as I previously testified

saved. If that tape itself is saved or not,

I don’t know.

[Trial counsel:] So you can’t tell this jury where the

location of the tape, the location of the

tape is now, correct?

[Officer:] That is correct.

. . .

[Trial counsel:] So as far as you’re concerned it’s lost?

[Officer:] I cannot say that it’s lost or not because

I may have put the tape in. That same

tape may have another incident on it that

[ ] may have happened later on during my

patrol functions a couple days later. So

that same tape may be in our evidence

room. I don’t know if it is or not.

[Trial counsel:] Did you make any effort to look for it

before coming to court today?

[Officer:] No, sir.

The officer clarified that, during his deposition, he explained how to retrieve

the video recording from the evidence locker, if the video recording existed

(Respondent’s Exhibit 8 at 295):

[Prosecutor:] Okay. Did you give a deposition in this

case?

[Officer:] Yes, sir, I did.

[Prosecutor:] And at that deposition did you explain to

the defense attorney where that tape might

be?

[Officer:] Yes, sir, I did.

[Prosecutor:] Okay. Tell us what you said at that time.

in my previous printed deposition,

I explained to the defense attorney what

I just testified now, is that [the] tape may

be [in] evidence, because to the best of my

recollection at that time, I may have had

an arrest a couple days after this particular

incident which would have been captured

on that same tape. That tape runs for a

certain amount of time. So that tape may

have this incident in it as well as my arrest

incident all in the same tape [in] our

evidence room, which I explained to the

defense attorney.

[Prosecutor:] Did you explain to the best of your

knowledge how to gather that tape?

[Officer:] Yes, sir. I explained to him who to

contact, the North Port Police

Department technician.

Also, the officer clarified that the prosecutor agreed to search for the video

recording in the evidence locker (Respondent’s Exhibit 8 at 297–99):

[Trial counsel:] Now, that deposition, there was a

discussion off the record with the State

Attorney, the Assistant State Attorney,

Ms. Fraivillig, you and me, correct?

[Officer:] I believe that’s what it states in the

printout, yes.

[Trial counsel:] And even off the record there was a

discussion, correct?

[Officer:] Yes, sir.

[Trial counsel:] And you were going to look for that tape,

correct?

[Officer:] I don’t believe that’s what I recall saying

to you.

[Trial counsel:] And the State Attorney’s Office was going

to look for that tape, correct?

[Officer:] Actually, the best of my recollection,

counselor, I believe you said you were

going to contact the evidence technician.

[Trial counsel:] So that’s the best of your recollection, but

the State Attorney’s Office, you don’t

recall the State Attorney’s Office ever

saying that they were going to look for

that tape as well?

[Officer:] I believe Ms. Fraivillig did say that she

was going to try to contact Pam Schmidt,

I believe, she said.

[Trial counsel:] And let me ask you this. The State

Attorney’s Office and law enforcement,

they work together, correct?

[Officer:] Yes, sir.

[Trial counsel:] All right. The State Attorney’s Office,

they have access to evidence as part of

their investigation, correct?

[Officer:] Yes.

[Trial counsel:] And you’ve met with the State Attorney

before walking in here today regarding

this case?

[Officer:] Prior just to the trial starting, yes.

[Trial counsel:] All right. Have you ever been asked by the

State Attorney to go look for that tape

before coming in here today?

[Officer:] No, sir, I have not.

[Trial counsel:] All right. And let me ask you this. You’re

not sure if that tape was put into evidence

under some other evidence number,

correct?

[Officer:] I think what we’re trying to confuse here

is, I know that tape may have been put

into evidence.

[Trial counsel:] That’s my question[ ], the keyword you

just used, “may.”

[Officer:] Correct.

[Trial counsel:] So that would indicate that you’re not

sure that it was put into evidence, correct?

[Officer:] I cannot testify [ ] that particular incident

is on that tape that is [in] evidence.

[Trial counsel:] Okay. Well, let me ask you this. You’re

not even sure that a tape is in evidence,

correct?

[Officer:] With this particular incident, that’s

correct.

[Trial counsel:] Okay. [Now,] my question is, you’re not

even sure it’s under evidence in another

case number, correct?

[Officer:] I don’t know. That’s what I’m trying to

testify to, counselor, I just don’t know.

[Trial counsel:] One thing you’re sure of though, is that if

the tape did still exist, it would have the

image of the car, correct?

[Officer:] Yes, sir.

[Trial counsel:] And the image of the individuals on —

that were near the car, the African

American couple, correct?

[Officer:] Yes, sir, it would.

[Trial counsel:] Now, is it — would it be fair to say that

whether that tape exists is wholly

dependent upon you making a subsequent

arrest in another case, correct?

[Officer:] That is correct.

after this incident, there would be no need

for you to keep the tape, correct?

[Officer:] That is correct.

Because the record demonstrates that trial counsel investigated whether the

video recording existed and that the police officer did not know whether the video

recording existed, the record refutes Juarez’s claim. Also, because Juarez failed to

submit with his motion for post-conviction relief either a copy of the video recording

or a summary of the contents of the video recording (Respondent’s Exhibit 18

at 8–10) and instead speculated that the video recording contained exculpatory

evidence, the post-conviction court did not unreasonably deny the claim. Aldrich v.

Wainwright, 777 F.2d 630, 636 (11th Cir. 1985) (“Speculation is insufficient to carry

the burden of a habeas corpus petitioner as to what evidence could have been

revealed by further investigation.”). Ground five is denied.

Ground Six:

Juarez asserts that trial counsel deficiently performed by not presenting

testimony by expert witnesses to rebut the opinions by the prosecutor’s expert

witnesses. (Doc. 1 at 11) Juarez contends that an accident reconstruction expert

would testify that Juarez did not solely cause the crash and that a toxicologist would

testify that Juarez’s blood alcohol content at the time of the crash was below the legal

limit. (Doc. 1 at 11) The post-conviction court denied the claim as follows

(Respondent’s Exhibit 22 at 2):

[T]he Defendant claims that trial counsel was ineffective for

fail[ing] to call experts to refute the State’s reconstructionist

that drew blood from the Defendant at the scene. The evidence

of Defendant’s intoxication at the time of the vehicular crash

was overwhelming. Therefore, this claim is denied.

Because Juarez failed to submit with his motion for post-conviction relief an

affidavit or testimony by an expert who would rebut an opinion by a prosecutor’s

expert (Respondent’s Exhibit 8 at 10–12) and instead speculated that an expert would

testify in the manner that he contended, Juarez failed to demonstrate prejudice under

Strickland. Sullivan v. DeLoach, 459 F.3d 1097, 1109 (11th Cir. 2006) (“This prejudice

burden is heavy where the petitioner alleges ineffective assistance in failing to call a

witness because ‘often allegations of what a witness would have testified to are

largely speculative.’”) (quoting United States v. Guerra, 628 F.2d 410, 413

(5th Cir. 1980)).

Also, even if an accident reconstruction expert testified that Juarez did not

solely cause the crash, “the driver’s conduct need not be the sole cause of the victim’s

death to support a conviction for DUI manslaughter.” Jones, 297 So. 3d at 687.

“Rather, the State need only present evidence to show that the driver was legally

impaired, the driver was operating the vehicle, and that the conduct of the driver

contributed to the victim’s death.” Jones, 297 So. 3d at 687. Consequently, even if

an accident reconstruction expert testified in the manner that Juarez contended,

Juarez cannot demonstrate a reasonable probability that the outcome at trial would

change. Strickland, 466 U.S. at 694.

Even if a toxicologist testified that Juarez’s blood alcohol content at the time

of the crash was below the legal limit, the prosecutor’s toxicologist testified that

Juarez’s blood contained an alcohol level between 0.124 and 0.125 and extrapolated

that when the crash occurred Juarez’s blood contained an alcohol level between

0.139 and 0.140. (Respondent’s Exhibit 8 at 583–84) A highway patrol corporal

testified that Juarez’s breath smelled like an alcoholic beverage and that Juarez’s eyes

appeared watery and bloodshot. (Respondent’s Exhibit 8 at 511) Also, the corporal

observed an empty beer bottle, a broken beer bottle, and beer bottle caps in the front

passenger seat of Juarez’s car. (Respondent’s Exhibit 8 at 503) A trooper, who

administered a horizontal gaze nystagmus exercise to Juarez, observed nystagmus,

or jerking of the eyes, which suggests intoxication. (Respondent’s 8 at 351–53)

Consequently, even if a toxicologist testified in the manner that Juarez contended,

Juarez cannot demonstrate a reasonable probability that the outcome at trial would

change, and the post-conviction court did not unreasonably deny the claim.

Strickland, 466 U.S. at 694. Ground six is denied.

Ground Seven:

Juarez asserts that cumulative error demonstrates his entitlement to relief.

(Doc. 1 at 12) Because no series of errors exists to accumulate, the cumulative-error

claim is meritless. Morris v. Sec’y, Dep’t Corrs., 677 F.3d 1117, 1132 (11th Cir. 2012).

Ground seven is denied.

VI. CONCLUSION

Juarez’s application for the writ of habeas corpus (Doc. 1) is DENIED. The

clerk must enter a judgment against Juarez and CLOSE this case.

DENIAL OF CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL JN FORMA PAUPERIS

Because Juarez fails to demonstrate either a substantial showing of the denial

of a constitutional right or that reasonable jurists would debate either the merits of

the grounds or the procedural issues, a certificate of appealability and leave to appeal

in forma pauperis ace DENIED. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S.

473, 478 (2000). Juarez must obtain permission from the court of appeals to appeal

in forma pauperis.

ORDERED in Tampa, Florida, on July 17, 2024.

Mis Wiwryelucy

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

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