Coz v. Secretary, Department of Corrections(Manatee County)

UMNIIDTEDDL ES TDAISTTERS IDCITS TORFI FCLTO CROIDURAT

TAMPA DIVISION

EDBIN HELI COZ,

Applicant,

v. CASE NO. 8:21-cv-1009-SDM-SPF

SECRETARY, Department of Corrections,

Respondent.

____________________________________/

ORDER

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

challenges his convictions for sexual battery on a child under twelve years of age,

lewd or lascivious molestation of a child under twelve years of age, and aggravated

child abuse, for which he is imprisoned for life. Numerous exhibits (“Respondent’s

Exhibit __”) support the response. (Doc. 6-2) The respondent concedes that the

application is timely but argues that each ground lacks merit.

I. BACKGROUND1

From 2008 to 2015, Coz lived with his girlfriend, Linda Orona, and her three

minor children, R.G., E.O, and L.O. On several occasions, Coz took R.G. to his

bedroom and touched her vagina and breasts. R.G. was under the age of twelve

when these incidents occurred. Also, Coz sexually abused E.O. “[m]ore than one

1 This summary of the facts derives from the trial transcript. (Respondent’s Exhibits 6–8)

time.” (Respondent’s Exhibit 7 at 224) While Orona was at work, Coz would wake

E.O., take her to his bedroom, digitally penetrate her vagina and anus, and instruct

her “[n]ot to tell anybody.” (Respondent’s Exhibit 7 at 224) E.O. was under the age

of ten when the abuse happened. Orona’s youngest daughter, L.O., testified that on

several occasions, Coz took her to his bedroom and rubbed her vagina with his leg.

On December 25, 2014, Coz and Orona were arguing in the kitchen. Coz

began to hit Orona “really hard.” (Respondent’s Exhibit 7 at 323) Orona’s

daughters entered the kitchen and saw Coz kicking and punching their mother on the

floor. When R.G. tried to intervene, Coz hit her in the head with a wooden cutting

board. R.G. suffered a skull fracture and an epidural hematoma. R.G. was treated

at the hospital, but Coz instructed E.O. and L.O. to say that R.G. had fallen on a

rock.

The victims did not disclose the sexual abuse to law enforcement until after

the Christmas incident. E.O. testified that she did not reveal the abuse sooner

because she was afraid that Coz would “hit” her. (Respondent’s Exhibit 7 at 228)

Likewise, R.G. stated that she did not “tell someone sooner” because she was

“scared” of Coz. (Respondent’s Exhibit 7 at 249)

Coz was charged with two counts of lewd or lascivious molestation and one

count of sexual battery. (Respondent’s Exhibit 5) In a separate case, he was charged

with one count of aggravated child abuse for the Christmas incident. (Respondent’s

Exhibit 3) Coz agreed to consolidate the two cases, which proceeded to trial. Coz

testified in his defense (1) that he “did hit [R.G.], but it was accidental” and (2) that

he “never touched the girls inappropriately.” (Respondent’s Exhibit 8 at 426)

During closing argument, Coz’s counsel asserted that the victims fabricated the

sexual abuse because they “wanted [him] out of the picture” after R.G. “was

accidentally hit and wound up [in] the hospital.” (Respondent’s Exhibit 8 at 459)

The jury found Coz guilty of sexual battery of E.O., lewd or lascivious

molestation of R.G., and aggravated child abuse of R.G. (Respondent’s Exhibit 9)

The jury acquitted him of lewd or lascivious molestation of L.O. (Respondent’s

Exhibit 9) The appellate court affirmed the convictions without a written opinion.

Coz v. State, 226 So. 3d 826 (Fla. 2d DCA 2017). Coz unsuccessfully sought post-

conviction relief under Florida Rule of Criminal Procedure 3.850 and Florida Rule

of Appellate Procedure 9.141(d). (Respondent’s Exhibits 18, 31, 35) This federal

habeas application followed. (Doc. 1)

II. STANDARD OF REVIEW

The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

governs this proceeding. Wilcox v. Fla. Dep’t of Corr., 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 in pertinent part:

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 —

(1) 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

(2) 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 §

2254(d)(1), the writ may issue only if one of the following

two conditions is satisfied — the state court adjudication

resulted in a decision that (1) “was contrary to . . . clearly

established Federal law, as determined by the Supreme

Court of the United States” or (2) “involved an

unreasonable application of . . . clearly established Federal

law, as determined by the Supreme Court of the United

States.” Under the “contrary to” clause, a federal habeas

court may grant the writ if the state court arrives at a

conclusion opposite to that reached by this Court on 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, 693 (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). See White v. Woodall, 572 U.S. 415, 427 (2014) (“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 . . . .”); Woods v.

Donald, 575 U.S. 312, 316 (2015) (“And an ‘unreasonable application of’ those

holdings must be objectively unreasonable, not merely wrong; even clear error will

not suffice.”) (citing Woodall, 572 U.S. at 419). Accord Brown v. Head, 272 F.3d 1308,

1313 (11th Cir. 2001) (“It is the objective reasonableness, not the correctness per se, of

the state court decision that we are to decide.”). 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.

The purpose of federal review is not to re-try the state case. “[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.” Bell, 535 U.S. at 694. A federal court

must afford due deference to a state court’s decision. “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). See also 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 explains its decision in a

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

opinion and defers to those reasons if they are reasonable. Wilson v. Sellers, 138 S. Ct.

1188, 1192 (2018) (“[A] federal habeas court simply reviews the specific reasons

given by the state court and defers to those reasons if they are reasonable.”). 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, 138 S. Ct. at 1192.

In per curiam decisions without written opinions, the state appellate court

affirmed Coz’s convictions and affirmed the denial of his Rule 3.850 motion for post-

conviction relief. Coz v. State, 226 So. 3d 826 (Fla. 2d DCA 2017); Coz v. State, 311

So. 3d 6 (Fla. 2d DCA 2021) Similarly, in another per curiam decision without a

written opinion, the state appellate court denied Coz’s petition alleging ineffective

assistance of appellate counsel. (Respondent’s Exhibit 18) The state appellate

court’s per curiam decisions warrant deference under Section 2254(d)(1) because “the

summary nature of a state court’s decision does not lessen the deference that it is

due.” Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002). See also Richter, 562

U.S. at 100 (“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.”), and Bishop v. Warden, 726 F.3d 1243, 1255–56 (11th Cir. 2013)

(describing the difference between an “opinion” or “analysis” and a “decision” or

“ruling” and explaining that deference is accorded the state court’s “decision” or

“ruling” even absent an “opinion” or “analysis”).

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

limited to the record that was before the state court:

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.

Coz bears the burden of overcoming by clear and convincing evidence a state

court’s fact determination. “[A] determination of a factual issue made by a State

court shall be presumed to be correct. The applicant shall have the burden of

rebutting the presumption of correctness by clear and convincing evidence.” 28

U.S.C. § 2254(e)(1). This presumption of correctness 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).

III. TRIAL COURT ERROR

Ground One:

Coz argues that the trial court violated his right to due process by denying his

motion for judgment of acquittal. According to Coz, no reasonable jury could have

convicted him of aggravated child abuse because (1) the prosecution presented no

evidence that he “knowingly, intentionally, and purposefully intended to injure”

R.G. and (2) the prosecution failed to refute his “hypothesis [that] the injury was

accidental.” (Doc. 1 at 8–9) The trial court denied Coz’s motion for judgment of

acquittal without explanation, and the appellate court affirmed the denial in an

unelaborated decision. (Respondent’s Exhibit 8 at 409; Coz v. State, 226 So. 3d 826

(Fla. 2d DCA 2017)) Consequently, Coz must show that the state court’s decision

possessed “no reasonable basis.” Richter, 562 U.S. at 98. He cannot meet his

burden.

The Due Process Clause of the Fourteenth Amendment requires the state to

prove beyond a reasonable doubt each element of the charged offense. Jackson v.

Virginia, 443 U.S. 307, 316 (1979). The governing question is “whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson, 443 U.S. at 319. “When the record reflects facts that support

conflicting inferences, there is a presumption that the jury resolved those conflicts in

favor of the prosecution and against the defendant.” Preston v. Sec’y, Fla. Dep’t of

Corr., 785 F.3d 449, 463 (11th Cir. 2015). Jackson “makes clear that it is the

responsibility of the jury — not the court — to decide what conclusions should be

drawn from evidence admitted at trial.” Cavazos v. Smith, 565 U.S. 1, 2 (2011).

“[A] federal court may not overturn a state court decision rejecting a

sufficiency of the evidence challenge simply because the federal court disagrees with

the state court. The federal court instead may do so only if the state court decision

was ‘objectively unreasonable.’” Cavazos, 565 U.S. at 2 (quoting Renico v. Lett, 559

U.S. 766, 773 (2010)).

Coz fails to show that the state court’s rejection of his sufficiency challenge

was “objectively unreasonable.” Cavazos, 565 U.S. at 2. “Under Florida law,

aggravated child abuse occurs in several ways, including when a person commits

aggravated battery on a child.” Sosa-Martinez v. U.S. Atty. Gen., 420 F.3d 1338, 1342

(11th Cir. 2005). Aggravated battery occurs when, in committing battery (an

unlawful touching), the defendant “[i]ntentionally or knowingly causes great bodily

harm, permanent disability, or permanent disfigurement.” Fla. Stat. § 784.045(1)(a).

“The law is clear that a trial court should rarely, if ever, grant a motion for judgment

of acquittal on the issue of intent.” Washington v. State, 737 So. 2d 1208, 1215 (Fla.

1st DCA 1999). “This is because proof of intent usually consists of the surrounding

circumstances of the case.” Washington, 737 So. 2d at 1215.

The prosecution presented sufficient evidence of aggravated child abuse. On

Christmas Day 2014, Coz was arguing with Orona in the kitchen. The argument

escalated, and he began to hit her “really hard.” (Respondent’s Exhibit 7 at 323)

R.G. entered the kitchen with her sisters, saw her mother on the ground, and tried to

intervene. Coz responded by striking R.G. in the head with a wooden cutting board.

At the time, R.G. was standing in front of Coz. The blow caused R.G. to suffer a

skull fracture and an epidural hematoma. Based on this evidence, a rational jury

could find beyond a reasonable doubt that Coz “[i]ntentionally or knowingly

cause[d] great bodily harm” — a skull fracture and an epidural hematoma — by

striking R.G. in the head with a cutting board. Fla. Stat. § 784.045(1)(a); see also

Sagner v. State, 791 So. 2d 1156, 1159 (Fla. 4th DCA 2001) (“Evidence of the heated

discussion and name calling between appellant and [the victim], immediately

followed by appellant’s looking [the victim] ‘straight in the eyes’ and throwing the

bottle ‘pretty hard’ in his direction, was sufficient to show appellant’s specific intent

to commit [aggravated battery].”). Because the prosecution presented sufficient

evidence that Coz committed aggravated battery on a child, the state court

reasonably concluded that he was not entitled to a judgment of acquittal for

aggravated child abuse.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

Coz claims ineffective assistance of trial and appellate 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) (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 (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 (1984), the Supreme Court set

forth a two-part test for analyzing ineffective assistance of

counsel claims. According to Strickland,

Fpeirrsfto,r tmhea ndceef ewnadsa ndte fmicuiesnt ts.h oTwh itsh raetq cuoiruenss el’s

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 performance

prejudiced the defense. This 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.

Coz 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, Coz 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.

Coz 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.

The Strickland standard of review applies to a claim of ineffective assistance of

appellate counsel. Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991). To establish

such a claim, Coz must show both that appellate counsel performed deficiently and

that the deficient performance resulted in prejudice. To demonstrate deficient

performance, Coz must show that appellate counsel’s failure to discover a non-

frivolous issue and file a merits brief raising that issue fell outside the range of

professionally acceptable performance. Smith v. Robbins, 528 U.S. 259, 285–86

(2000). To demonstrate prejudice, Coz must show that a reasonable probability

exists that, but for appellate counsel’s unreasonable failure to file a merits brief on a

particular issue, Coz would have prevailed on appeal. Smith, 528 U.S. at 285–86.

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. See Nance v. Warden, Ga. Diag. Prison, 922 F.3d 1298, 1303

(11th Cir. 2019) (“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)).

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.

Ground Two:

Coz contends that appellate counsel provided ineffective assistance by failing

to argue that the charging information was “fundamentally defective.” (Doc. 1 at

12) According to Coz, sexual battery on a child under the age of twelve requires

proof of “injury to the alleged victim’s sexual organ.” (Doc. 1 at 14) Coz maintains

(1) that the information was defective because it failed to allege this “essential

element” and (2) that appellate counsel performed deficiently by neglecting to raise

the alleged error on direct appeal. (Doc. 1 at 14) Also, Coz faults trial counsel for

“not informing [him] that injury to the alleged victim’s sexual organs is an essential

element” of sexual battery. (Doc. 1 at 13) Had he known this “vital information,”

Coz allegedly could have sought an acquittal based on the prosecution’s failure to

present any evidence of injury to E.O.’s sexual organs. (Doc. 1 at 13) Lastly, Coz

argues that appellate counsel should have challenged his convictions for sexual

battery and lewd or lascivious molestation because they rested entirely on “victim

testimony without corroborating evidence.” (Doc. 1 at 16)

Even under de novo review, these claims do not entitle Coz to relief. See

Berghuis v. Thompkins, 560 U.S. 370, 390 (2010) (“Courts can . . . deny writs of

habeas corpus under § 2254 by engaging in de novo review . . . because a habeas

petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected

on de novo review.”). Counsel “is not ineffective for failing to raise claims reasonably

considered to be without merit.” United States v. Nyhuis, 211 F.3d 1340, 1344 (11th

Cir. 2000); see also Brown v. United States, 720 F.3d 1316, 1335 (11th Cir. 2013) (“It is .

. . crystal clear that there can be no showing of actual prejudice from an appellate

attorney’s failure to raise a meritless claim.”). As explained below, Coz’s arguments

about the information and the sufficiency of the evidence are frivolous. Therefore,

counsel did not render ineffective assistance by failing to pursue them.

First, the information was not defective. An information “is sufficient when it

charges a crime with sufficient precision to inform the defendant of the charges he

must meet and with enough detail that he may plead double jeopardy in a future

prosecution based on the same set of events.” United States v. Stavroulakis, 952 F.2d

686, 693 (11th Cir. 1992). “Those requirements are satisfied by an [information] that

tracks the wording of the statute, as long as the language sets forth the essential

elements of the crime.” United States v. Yonn, 702 F.2d 1341, 1348 (11th Cir. 1983).

Coz was charged with one count of sexual battery of a child under twelve

years of age. That offense requires proof that (1) the defendant used an object to

penetrate the victim’s vagina or anus, (2) the defendant was eighteen years of age or

older, and (3) the victim was less than twelve years of age. Fla. Stat. § 794.011(2)(a);

see also Fla. Std. Jury. Instr. (Crim.) 11.1. The information in Coz’s case “track[ed]

the wording of the statute.” Yonn, 702 F.2d at 1348. Count one alleged that Coz,

“while being eighteen [ ] years of age or older,” “commit[ted] a sexual battery upon

E.O,” a child under the age of twelve, by “penetrat[ing] [her] vagina or anus” “with

his finger.” (Respondent’s Exhibit 5 at 1) According to the information, Coz

committed these acts “contrary to Section 794.011(2)(a).” (Respondent’s Exhibit 5

at 1) Because the prosecution “both provided the citation to the specific statute[] for

the offense and used language nearly identical to the statute,” the information “was

constitutionally adequate and sufficiently informed [Coz] of the charge” against him.

Sneed v. Fla. Dep’t of Corr., 496 F. App’x 20, 23-24 (11th Cir. 2012).

Coz contends that the information should have included the “essential

element” of “injury to the alleged victim’s sexual organ.” (Doc. 1 at 14) Coz

misreads the statute. Florida law criminalizes “an attempt to commit sexual battery”

that “injures the sexual organs of” a child under the age of twelve. Fla. Stat. §

794.011(2)(a) (emphasis added). But Coz was not charged with attempted sexual

battery. He was charged with actual sexual battery, which does not require proof of

injury to the victim’s sexual organs. See Clark v. Sec’y, Dep’t of Corr., No. 8:18-cv-

2670-MSS-AEP, 2022 WL 485229, at *12 (M.D. Fla. Feb. 17, 2022) (“[Petitioner]

was not charged with injuring the sexual organs of D.A. while attempting to sexually

batter her; rather, he was charged with committing sexual battery upon D.A. ‘by

penetration of and/or union with the vagina of D.A. by the mouth of’ [petitioner].

Thus, the State did not have to prove injury to obtain a conviction.”).

Second, Coz’s convictions were not subject to challenge on the ground that

they rested solely on “victim testimony without corroborating evidence.” (Doc. 1 at

16) “The testimony of a single witness, even if uncorroborated and contradicted by

other State witnesses, is sufficient to sustain a conviction.” Bussell v. State, 66 So. 3d

1059, 1061 (Fla. 1st DCA 2011). Also, Florida law provides that “in a prosecution”

for sexual battery or lewd or lascivious molestation, “[t]he testimony of the victim

need not be corroborated.” Fla. Stat. § 794.022(1).2

Both E.O. and R.G. testified about the sexual abuse Coz inflicted on them

when they were under the age of twelve. E.O. stated that on several occasions, Coz

woke her, took her to his bedroom, and digitally penetrated her vagina and anus.

This testimony was sufficient to sustain a conviction for sexual battery. See Fla. Stat.

§ 794.011(2)(a); see also Fla. Std. Jury. Instr. (Crim.) 11.1. R.G. stated that on several

occasions, Coz took her to his bedroom and touched her vagina and breasts. Based

on this testimony, a rational jury could find Coz guilty of lewd or lascivious

molestation. See Fla. Stat. § 800.04(5)(b) (defining lewd or lascivious molestation as

2 Coz appears to contend that Fla. Stat. § 794.022(1) is unconstitutional. (Doc. 1 at 15) But

“the testimony of the victim alone is constitutionally sufficient to sustain a conviction.” Tucker v.

Palmer, 541 F.3d 652, 658 (6th Cir. 2008); see also United States v. Knight, 381 F. App’x 942, 944 (11th

Cir. 2010) (“A federal conviction . . . can be based on the uncorroborated testimony of a single

witness.”).

“intentionally touch[ing] in a lewd or lascivious manner the breasts, genitals, genital

area, or buttocks, or the clothing covering them, of a person”).

For all these reasons, counsel did not perform deficiently by failing to raise

Coz’s meritless arguments about the information and the sufficiency of the evidence.

See Freeman v. Atty. Gen., 536 F.3d 1225, 1233 (11th Cir. 2008) (“A lawyer cannot be

deficient for failing to raise a meritless claim.”).

Ground Three, Sub-Claim A:

Coz asserts that appellate counsel rendered ineffective assistance by failing to

argue that the trial court committed fundamental error in its jury instructions. (Doc.

1 at 16) According to Coz, the trial court mistakenly failed to instruct the jury on

lesser-included offenses for sexual battery and lewd or lascivious molestation.3 (Doc.

1 at 16–17) Coz maintains that the “failure to correctly instruct the jury on a lesser-

included offense constitutes fundamental error” and that appellate counsel performed

deficiently by failing to raise this issue on direct appeal. (Doc. 1 at 17) The state

appellate court rejected Coz’s ineffective assistance claim in an unelaborated

decision. (Respondent’s Exhibit 18)

This ground lacks merit. At trial, Coz did not object to the failure to instruct

the jury on lesser-included offenses. Consequently, the claim for ineffective

assistance of appellate counsel turns on whether the alleged error was “fundamental”

under Florida law. If the alleged error was “not fundamental, then [Coz’s] appellate

3 Coz does not identify the lesser-included offenses that allegedly should have been presented

to the jury.

counsel would have been procedurally barred from raising it on appeal, and so he

could not have been ineffective for failing to raise it.” Scott v. Sec’y, Dep’t of Corr., 857

F. App’x 548, 551 (11th Cir. 2021); see also State v. Delva, 575 So. 2d 643, 644 (Fla.

1991) (“Instructions . . . are subject to the contemporaneous objection rule, and,

absent an objection at trial, can be raised on appeal only if fundamental error

occurred.”).

By rejecting Coz’s ineffective assistance claim in an unelaborated order, the

state appellate court “implicitly” determined that the instructions were not

fundamentally erroneous. See Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1297 (11th Cir.

2017) (holding that, “[b]ecause the Florida Second District Court of Appeal denied

[petitioner’s] state habeas petition” without explanation, “the Florida court has

already determined, albeit implicitly, that the error was not fundamental error”).

“[T]he fundamental error question is an issue of state law, and state law is what the

state courts say it is.” Pinkney, 876 F.3d at 1299. Therefore, the district court “must

defer to the [state] court’s underlying determination[]” that the instructions were not

fundamentally erroneous. Pinkney, 876 F.3d at 1297–98. Because the instructions

did not constitute fundamental error, “appellate counsel would have been

procedurally barred from [challenging them] on appeal.” Scott, 857 F. App’x at 551.

Counsel “will not be held to have performed deficiently” where, as here, he “fail[s]

to perform a futile act, one that would not have gotten his client any relief.” Pinkney,

876 F.3d at 1297.

Ground Three, Sub-Claim B:

Coz separately contends that trial counsel provided ineffective assistance by

failing to request lesser-included offense instructions for sexual battery and lewd or

lascivious molestation. (Doc. 1 at 16) The respondent argues that this claim is

unexhausted and procedurally defaulted. (Doc. 6 at 22–23) The district court need

not decide whether the claim is defaulted because it fails on the merits. See Dallas v.

Warden, 964 F.3d 1285, 1307 (11th Cir. 2020) (“As we have said many times and as

the Supreme Court has held, a federal court may skip over the procedural default

analysis if a claim would fail on the merits in any event.”).

Florida law requires a jury to “render a true verdict according to the law and

the evidence.” Sanders v. State, 946 So. 2d 953, 958 (Fla. 2006). Thus, a jury may

convict of a lesser-included offense “only if it decide[s] that the main accusation has

not been proved beyond a reasonable doubt.” Sanders, 946 So. 2d at 958. In accord

with this principle, the jury in Coz’s case was instructed that if it “return[ed] a verdict

of guilty, it should be for the highest offense which has been proven beyond a

reasonable doubt.” (Respondent’s Exhibit 8 at 479) The district court must assume

that the jury followed this instruction. See Strickland, 466 U.S. at 694 (“[A] court

should presume . . . that the judge or jury acted according to law.”). As noted above,

the jury found Coz guilty of sexual battery and lewd or lascivious molestation — the

highest offenses charged in this case. Consequently, “even if the lesser-offense

instructions had been given, the jury would not have been permitted to convict [Coz]

of the lesser-included offenses because it had concluded that the evidence established

that he was guilty of the greater offenses.” Crapser v. Sec’y, Dep’t of Corr., 855 F.

App’x 626, 628 (11th Cir. 2021).

Coz’s claim “depends . . . on the possibility of a jury pardon — that is, that the

jury would have disregarded its oath and violated its instructions by acquitting him

of the greater offense and convicting him of a lesser one even though the evidence

supported both crimes.” Crapser, 855 F. App’x at 628. “The possibility of a jury

pardon, however, cannot establish prejudice under Strickland.” Thornton v. Sec’y, Fla.

Dep’t of Corr., No. 3:18-cv-762-MMH-PDB, 2021 WL 2073685, at *9 (M.D. Fla. May

24, 2021); see also Santiago v. Sec’y, Fla. Dep’t of Corr., 472 F. App’x 888, 889 (11th Cir.

2012) (“The jury in [petitioner’s] trial concluded that the evidence against him

supported his conviction for the greater offenses on which it was instructed;

therefore, even if the lesser-offense instructions had been given, the jury would not

have been permitted to convict [petitioner] of the lesser included offenses because it

had concluded that the evidence established that he was guilty of the greater

offenses.”).4

Ground Four:

Ground four rehashes Coz’s argument that his conviction for sexual battery

“violates due process” because the prosecution neither alleged nor proved injury to

4 Generously construed, Coz’s application alleges that appellate counsel was ineffective for

failing to raise the claim of ineffective assistance of trial counsel in ground three, sub-claim B. As

explained above, however, the claim of ineffective assistance of trial counsel lacks merit.

Consequently, appellate counsel did not perform deficiently by failing to raise this meritless claim.

See Payne v. Allen, 539 F.3d 1297, 1314 (11th Cir. 2008) (“[T]o determine whether [a petitioner] has

shown ineffective appellate counsel, [the court] must determine whether [he] has shown underlying

meritorious ineffective-trial-counsel claims.”).

E.O.’s sexual organs. (Doc. 1 at 20) Also, Coz repeats his argument that trial and

appellate counsel provided ineffective assistance by failing to challenge the absence

of this “essential element.” (Doc. 1 at 19) As explained above, sexual battery of a

child under the age of twelve does not require proof of injury to the victim’s sexual

organs. See Fla. Stat. § 794.011(2)(a). Consequently, ground four lacks merit.

Ground Five:

Coz asserts that trial counsel rendered ineffective assistance by failing to object

to “improper comments of the prosecutor” during closing argument. (Doc. 1 at 22)

Coz challenges the following comments (Respondent’s Exhibit 8 at 453–54):

[The victims] loved [Coz] as a father figure. Why would

they be here telling you all that he did, all these horrible

things to them, if that did not happen? There’s no reason

for it. It’s not a child taking a cookie from the jar before

dinner, where that child would have motive to lie because

they’d get in trouble. There’s no motive to lie. Nobody

told them to lie. They have no reason to lie.

Coz maintains that these remarks improperly “bolster[ed] the testimony” of the

victims by “vouching for [their] credibility.” (Doc. 1 at 22)

The post-conviction court rejected this claim on the ground that any objection

to the prosecutor’s remarks “would have been meritless.” (Respondent’s Exhibit 31

at 5) The court explained (1) that “[c]losing argument is an opportunity for counsel

to review the evidence and to explicate those inferences which may reasonably be

drawn from the evidence” and (2) that “[a]ttorneys are permitted wide latitude in

closing arguments but are not permitted to make improper argument.”

(Respondent’s Exhibit 31 at 4) The court applied these principles and found that

“the prosecutor’s statement that the children love [Coz] as a father figure was based

on evidence presented at trial.” (Respondent’s Exhibit 31 at 5) Specifically, Coz

“testified that the victims loved him as a father figure because he provided them with

financial support.” (Respondent’s Exhibit 31 at 5) Coz’s aunt, Antonia Coz, “also

testified that all three girls loved [Coz] as a father figure.” (Respondent’s Exhibit 31

at 5) Therefore, the court held that counsel had no legal basis to object to the

prosecutor’s remarks.

The rejection of this claim was reasonable. “A prosecutor’s remarks are

improper if they attempt to bolster the credibility of a witness based on the

government’s reputation or through alluding to evidence not admitted at trial.”

United States v. Lopez, 590 F.3d 1238, 1256 (11th Cir. 2009). “To determine if the

government improperly vouched for a witness, the court must decide whether a jury

could reasonably believe that the prosecutor was indicating a personal belief in the

witness’[s] credibility.” Lopez, 590 F.3d at 1256. “This prohibition against vouching

does not, however, forbid prosecutors from arguing credibility; rather, it forbids

arguing credibility based on the reputation of the government office or on evidence

not before the jury.” Lopez, 590 F.3d at 1256. “[A]n attorney is allowed to argue

reasonable inferences from the evidence and to argue credibility of witnesses or any

other relevant issue so long as the argument is based on the evidence.” Gonzalez v.

State, 136 So. 3d 1125, 1143 (Fla. 2014).

The challenged remarks did not “amount to an explicit, personal guarantee of

credibility, such as assuring the jury that the prosecution would not have brought the

case unless the defendant was actually guilty.” United States v. Hernandez, 921 F.2d

1569, 1573 (11th Cir. 1991). Instead, the prosecutor urged the jury to credit the

victims’ testimony based on “facts in evidence and reasonable inferences from those

facts.” United States v. Gonzalez, 834 F.3d 1206, 1226 (11th Cir. 2016). As the post-

conviction court noted, Coz and his aunt testified that the victims “love[d] [Coz] as a

father figure.” (Respondent’s Exhibit 8 at 420, 433) Based on this testimony, a jury

could reasonably infer that the victims lacked a motive to falsely accuse Coz of

sexual abuse. Therefore, the prosecutor did not act improperly in arguing that the

victims had no reason to lie. See United States v. Hernandez, 921 F.2d 1569, 1573 (11th

Cir. 1991) (“The prosecutor may not vouch for witnesses but may still argue that the

fair inference from the facts presented is that a witness had no reason to lie.”).

Because any objection to the prosecutor’s remarks would have lacked merit,

the post-conviction court reasonably rejected the ineffective assistance claim. See

Freeman, 536 F.3d at 1233 (“A lawyer cannot be deficient for failing to raise a

meritless claim.”).

Ground Six:

Coz argues that trial counsel was ineffective for failing to object to the trial

court’s “allow[ing] the jury to take into the jury room” video recordings of the

victims’ interviews with the Manatee County Child Protection Team. (Doc. 1 at 26)

During trial, the videos were played to the jury. The court asked whether “both sides

agree[d] that” the videos could “go back to the jury room” once deliberations began.

(Respondent’s Exhibit 8 at 337–38) Both the prosecution and Coz’s counsel

consented. Coz maintains that under Florida law, “trial testimony presented by way

of videotape [is] not permitted in the jury room.” (Doc. 1 at 28) Therefore, he faults

counsel for failing to argue that the “videotape . . . interviews . . . should not have

been permitted into the jury room during deliberations.” (Doc. 1 at 29)

After holding an evidentiary hearing, the post-conviction court denied Coz’s

claim in a written order. The court agreed that under Florida law, the jury should

not have been allowed to view the “videotaped interviews with [the] child victims in

the jury room during deliberations.” (Respondent’s Exhibit 31 at 5) To support this

conclusion, the court cited Young v. State, 645 So. 2d 965, 967 (Fla. 1994), which held

that “videotaped out-of-court interviews with child victims introduced into evidence

[at trial] shall not be allowed into the jury room during deliberations.”

(Respondent’s Exhibit 31 at 6) Because Coz’s counsel “admitted [at the evidentiary

hearing] that he was unaware of the ruling in Young,” the court found counsel’s

performance “deficient.” (Respondent’s Exhibit 31 at 7)

The court nevertheless denied relief because Coz “failed to establish a

reasonable probability that, but for counsel’s deficient performance, the outcome of

the proceedings would have been different.” (Respondent’s Exhibit 31 at 7) The

court noted that Young did “not prevent the trial judge from allowing the jury to view

the videotape a second time in open court upon request.” (Respondent’s Exhibit 31

at 6 (quoting Young, 645 So. 2d at 968)) To the contrary, Young “plainly

acknowledge[d] that videotaped interviews between [a Child Protection Team] and

child victims can be replayed at the jury’s request, but they must be played in open

court and in the presence of all parties.” (Respondent’s Exhibit 31 at 6–7) The court

discerned no prejudice from the possibility that the “jury view[ed] the [] videotapes in

the jury room, as opposed to viewing the videotapes in open court in the presence of

both parties.” (Respondent’s Exhibit 31 at 7) Moreover, the court (1) found no

evidence that “the jury watched the taped interviews” during deliberations and (2)

determined that “the victims’ testimony was consistent in the interviews and at trial.”

(Respondent’s Exhibit 31 at 8) Therefore, the court concluded that Coz “failed to

establish that trial counsel’s deficient performance compromised the fairness and

reliability of the proceeding.” (Respondent’s Exhibit 31 at 9)

The post-conviction court reasonably rejected this claim for lack of prejudice.

“The prejudice prong requires the petitioner to establish a reasonable probability

that, but for counsel’s errors, the outcome at trial would have been different.” Reed v.

Sec’y, Fla. Dep’t of Corr., 767 F.3d 1252, 1261 (11th Cir. 2014) (internal quotation

marks omitted). “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694. “It is not enough for the

[petitioner] to show that the errors had some conceivable effect on the outcome of

the proceeding.” Strickland, 466 U.S. at 693. Instead, “counsel’s errors [must be] so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”

Strickland, 466 U.S. at 687. “Applying AEDPA to Strickland’s prejudice standard,

[the district court] must decide whether the state court’s conclusion that [counsel’s]

performance . . . didn’t prejudice [Coz] — that there was no substantial likelihood of

a different result — was so obviously wrong that its error lies beyond any possibility

for fairminded disagreement.” Mungin v. Sec’y, Fla. Dep’t of Corr., 89 F.4th 1308, 1317

(11th Cir. 2024) (internal quotation marks omitted).

Coz cannot meet this demanding standard. He fails to establish a “reasonable

probability” that the outcome of his trial would have been different if the jury had

not had access to the videotaped interviews during deliberations. Strickland, 466 U.S.

at 694. The jury had already watched the interviews during trial, and Coz points to

no evidence that the jury viewed the interviews again while deliberating. See

Sneathen v. Sec’y, Dep’t of Corr., No. 20-11933, 2021 WL 4075748, at *4 (11th Cir.

Sept. 8, 2021) (“[Petitioner] failed to establish that the outcome of his trial would

have been different if the jury had not had access to M.G.’s interview during their

deliberations. The jury had already watched M.G.’s interview during trial.

[Petitioner’s] speculation that the jury watched the interview again is insufficient to

establish prejudice under Strickland.”). Moreover, as the post-conviction court

explained, the jury could have “view[ed] the videotape[s] a second time in open

court upon request.” Young, 645 So. 2d at 968. Also, “the victims’ trial testimony

[was] largely consistent with their [videotaped] interviews.” (Respondent’s Exhibit

31 at 8) Thus, the post-conviction court reasonably concluded that Coz suffered no

prejudice from counsel’s deficient performance. See Platt v. Sec’y, Fla. Dep’t of Corr.,

No. 18-14169-CV, 2020 WL 8922869, at *3 (S.D. Fla. Aug. 5, 2020) (finding no

prejudice because the “video [interview with the child victim] was played during the

trial,” petitioner failed to “establish[] that the jury watched it again during

deliberations, and the “video was largely cumulative of the victim’s testimony” at

trial), adopted by 2021 WL 1109173 (S.D. Fla. Mar. 23, 2021).

Ground Seven, Sub-Claim A:

Coz contends that trial counsel provided ineffective assistance by failing to

object to the prosecution’s motion to consolidate his two cases. (Doc. 1 at 30) As

explained above, Coz was initially charged in one case with aggravated child abuse

for striking R.G. in the head with a cutting board, and in another case with sexual

battery of E.O. and lewd or lascivious molestation of R.G. and L.O. The

prosecution moved to consolidate the two cases, and Coz’s counsel consented to

consolidation. (Respondent’s Exhibit 4) Coz maintains that counsel should have

opposed consolidation “because the two cases were not the same episode and, given

the nature of the charges against [him], consolidating the cases created undue bias.”

(Doc. 1 at 30)

The post-conviction court held an evidentiary hearing on this claim. Counsel

testified that he “felt [consolidation] was our best move, strategically.”

(Respondent’s Exhibit 30 at 28) He explained that, when he “initially spoke” to

Coz, “the only thing [Coz] could say as far as [a] defense was the children [were]

lying.” (Respondent’s Exhibit 30 at 20) Counsel “kept telling [Coz] there need[ed]

to be a reason for why they lied.” (Respondent’s Exhibit 30 at 20) Counsel and his

client eventually settled on the theory that the victims fabricated the sexual abuse

because they were upset at Coz for accidentally hitting R.G. in the head on

Christmas Day 2014. Therefore, consolidation would allow counsel to use the

Christmas incident as a motive for the victims to “mak[e] up” the sexual abuse.

(Respondent’s Exhibit 30 at 56) Counsel acknowledged that consolidation can be “a

double-edged sword” but claimed that “in this particular case, [he] felt that

[consolidation] would be beneficial[] strategically.” (Respondent’s Exhibit 30 at 27,

29) Also, counsel testified that he discussed consolidation with Coz “prior to trial at

the jail” and that Coz had no objection to consolidation. (Respondent’s Exhibit 30

at 55–57) Finally, counsel “anticipated” that the cases would “in all likelihood [] be

consolidated even if we were to object.” (Respondent’s Exhibit 30 at 23)

The post-conviction court denied Coz’s claim in a written order. The court

noted that “the defense theory connected the physical abuse in [the first case] to the

sexual abuse in [the second case] by asserting that the physical abuse was an accident

and the children lied about the sexual abuse to get revenge for the one child’s injury.”

(Respondent’s Exhibit 31 at 9) The court credited counsel’s testimony that “he made

a strategic choice to consolidate the cases because the defense strategy was to show

that all three children fabricated a story of sexual abuse after [Coz] hit and injured

one of the children.” (Respondent’s Exhibit 31 at 9) Also, the court credited

counsel’s statement that “he did discuss consolidating the cases with” Coz.

(Respondent’s Exhibit 31 at 10) The court concluded that counsel did not provide

ineffective assistance because he “adopt[ed] [a] reasonable strateg[y], even if in

retrospect [that] strateg[y] appeared unadvisable.” (Respondent’s Exhibit 31 at 9

(quoting Hitchcock v. State, 991 So. 2d 337, 347 (Fla. 2008)))

The rejection of this claim was reasonable. “[S]trategic choices made after

thorough investigation of law and facts relevant to plausible options are virtually

unchallengeable.” Strickland, 466 U.S. at 690. A strategic choice “will be held to

have been ineffective assistance only if it was so patently unreasonable that no

competent attorney would have chosen it.” Dingle v. Sec’y for Dep’t of Corr., 480 F.3d

1092, 1099 (11th Cir. 2007). “Because Strickland allows for a range of strategic

choices by trial counsel, so too is there considerable leeway for state courts to

determine the reasonableness of those choices.” Franks v. GDCP Warden, 975 F.3d

1165, 1176 (11th Cir. 2020). Consequently, to prevail on his ineffective assistance

claim, Coz “would have to show that no reasonable jurist could find that his

counsel’s performance fell within the wide range of reasonable professional

conduct.” Franks, 975 F.3d at 1176.

Coz fails to overcome the “doubly deferential” standard of review required by

Strickland and AEDPA. Pinholster, 563 U.S. at 190. A reasonable jurist could

conclude that counsel acted “within the wide range of reasonable professional

conduct” when he consented to consolidation. Franks, 975 F.3d at 1176. Counsel

believed that consolidation would be “beneficial[] strategically” because a single trial

would allow him to present Coz’s “only defense,” namely, that the victims fabricated

the sexual abuse out of anger at Coz for accidentally hitting R.G. in the head.

(Respondent’s Exhibit 30 at 27, 34) If the jury concluded that the victims fabricated

the sexual abuse, it might find that they were lying about the Christmas incident too.

Also, competent counsel could have believed that exposing Coz to two trials — with

two chances of a conviction — was not in Coz’s best interest. See Richter, 562 U.S. at

110 (“Strickland . . . calls for an inquiry into the objective reasonableness of counsel’s

performance, not counsel’s subjective state of mind.”); Hanna v. State, 970 So. 2d

385, 386 (Fla. 3d DCA 2007) (finding that counsel acted reasonably in opposing

severance because “[t]hat decision exposed [defendant] to a single trial rather than

two trials”). And counsel’s strategy was partially successful — the jury acquitted

Coz of lewd or lascivious molestation of L.O. In these circumstances, a reasonable

jurist could conclude that “[some] competent counsel would have taken the action

that [Coz’s] counsel did take.” Chandler v. United States, 218 F.3d 1305, 1315 (11th

Cir. 2000).

Ground Seven, Sub-Claim B:

Coz argues that trial counsel provided ineffective assistance by failing to

adequately move for a judgment of acquittal on the aggravated child abuse count.

(Doc. 1 at 34) As explained above in connection with ground one, the prosecution

presented sufficient evidence to sustain Coz’s conviction for aggravated child abuse.

Therefore, counsel did not perform deficiently by failing to raise Coz’s meritless

sufficiency challenge. See Freeman, 536 F.3d at 1233 (“A lawyer cannot be deficient

for failing to raise a meritless claim.”).

Ground Eight:

Coz asserts that trial counsel rendered ineffective assistance by “stipulating to

[the] admission of child victim hearsay.” (Doc. 1 at 35) Under Florida law, a “child

hearsay statement” is admissible if it “meet[s] two specific reliability requirements:

(1) the source of the information through which the statement was reported must

show trustworthiness; and (2) the time, content, and circumstances of the statement

must reflect that the statement provides sufficient safeguards of reliability.”

Fitzsimmons v. State, 309 So. 3d 261, 264 (Fla. 1st DCA 2020). As explained earlier,

the jury watched videotapes of the victims’ interviews with the Manatee County

Child Protection Team. Four months before trial, Coz’s counsel stipulated to the

admission of those interviews. (Respondent’s Exhibit 30 at 37) Coz contends that

the stipulation exposed the jury to “insufficient hearsay evidence” and “deprived

[him] of [his] right to effective assistance of counsel.” (Doc. 1 at 36)

The post-conviction court rejected this claim for lack of prejudice. The court

applied Florida law and held that Coz had “not proven that the [trial judge] would

have excluded the videotapes of the [] interviews if [counsel] had objected to their

admission.” (Respondent’s Exhibit 31 at 15) The court explained that “the out-of-

court statements [were] video recordings” and thus constituted “reliable sources of

information.” (Respondent’s Exhibit 31 at 12) Also, the court found that the “time,

content, and circumstances under which [the statements] were made” did not require

exclusion of the child hearsay statements. (Respondent’s Exhibit 31 at 12–15)

Therefore, Coz “failed to establish that [counsel’s] stipulation to admit the child

hearsay so greatly affected the fairness of the proceeding that confidence in the

outcome ha[d] been undermined.” (Respondent’s Exhibit 31 at 15)

The rejection of this claim was reasonable. “[A]lthough the issue of

ineffective assistance . . . is one of constitutional dimension,” a court “must defer to

the state’s construction of its own law when the validity of the [ineffective assistance]

claim . . . turns on state law.” Pinkney, 876 F.3d at 1295. The post-conviction court

found no prejudice from counsel’s stipulation because Coz had “not proven that the

[trial judge] would have excluded the videotapes of the [] interviews if [counsel] had

objected to their admission.” (Respondent’s Exhibit 31 at 15) The admissibility of

child hearsay is a matter of Florida law. Consequently, the post-conviction court

“already has told us how the issue[] would have been resolved under Florida state

law had [counsel] done what [Coz] argues he should have done.” Herring v. Sec’y.

Dep’t of Corr., 397 F.3d 1338, 1354-55 (11th Cir. 2005). The federal district court

cannot “second-guess that state law determination.” Schermick v. Sec’y, Fla. Dep’t of

Corr., No. 16-15924-G, 2018 WL 11433603, at *4 (11th Cir. Nov. 29, 2018) (rejecting

ineffective assistance claim because “[t]he state court already concluded, when

considering [petitioner’s] post-conviction motion, that, even if [] trial counsel had

moved to challenge the reliability of the child hearsay statements, the statements

would have been admitted”).

Because the post-conviction court “authoritatively decided as a matter of

[Florida] law” that the child hearsay would not have been excluded, the remainder of

the analysis is straightforward. Calhoun v. Warden, Baldwin State Prison, 92 F.4th

1338, 1351 (11th Cir. 2024). “[A] lawyer’s failure to preserve a meritless issue

plainly cannot prejudice a client.” United States v. Winfield, 960 F.2d 970, 974 (11th

Cir. 1992). Therefore, the post-conviction court reasonably concluded that Coz

suffered no prejudice from counsel’s failure to raise a meritless objection to the child

hearsay statements.°

V. CONCLUSION

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

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

CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL JN FORMA PAUPERIS

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

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

grounds and 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). Coz must obtain permission from the court of appeals to appeal in forma

pauperis.

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

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

° Generously construed, ground eight alleges that trial counsel was “ineffective for failing to

argue” that “insufficient evidence” supported Coz’s convictions for sexual battery and lewd or

lascivious molestation. (Doc. 1 at 35) As explained earlier, any such argument would have failed

because the prosecution presented sufficient evidence to convict Coz of both offenses.

-33-