Martin-Godinez v. Secretary, Florida Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

REYNALDO MARTIN-GODINEZ,

Petitioner,

v. Case No. 3:21-cv-582-TJC-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

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

filing a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus (Doc. 1).

Petitioner challenges a state court (Duval County, Florida) judgment of

conviction for three counts of sexual battery on a person less than 12 years of

age and one count of lewd and lascivious molestation. See id. at 1. Petitioner is

serving a mandatory life term of incarceration. Respondents filed a Response

(Doc. 10; Response) with exhibits (Docs. 10-1 to 10-20; Ex.). Petitioner filed a

Reply (Doc. 12). This case is ripe for review.1

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

for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318

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

II. Governing Legal Principles

A. Standard Under AEDPA

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

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

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

2016), cert. denied, 137 S. Ct. 1432 (2017). “‘The purpose of AEDPA is to ensure

that federal habeas relief functions as a guard against extreme malfunctions in

the state criminal justice systems, and not as a means of error correction.’” Id.

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

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

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

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

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

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

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

unaccompanied by an explanation,

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

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

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

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

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

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

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

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

the federal court should “look through” the unexplained

decision to the last related state-court decision that

does provide a relevant rationale. It should then

presume that the unexplained decision adopted the

same reasoning. But the State may rebut the

presumption by showing that the unexplained

affirmance relied or most likely did rely on different

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

alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the

record it reviewed.

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

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

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

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

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

States,” or “was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(1),

(2). A state court’s factual findings are “presumed to be correct” unless rebutted

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

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that

state-court decisions be given the benefit of the doubt.”

Renico v. Lett, 559 U.S. 766, 773 (2010) (internal

quotation marks omitted). “A state court’s

determination that a claim lacks merit precludes

federal habeas relief so long as fairminded jurists could

disagree on the correctness of the state court’s

decision.” Harrington v. Richter, 562 U.S. 86, 101

(2011) (internal quotation marks omitted). “It bears

repeating that even a strong case for relief does not

mean the state court’s contrary conclusion was

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

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

repeatedly instructed lower federal courts that an

unreasonable application of law requires more than

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

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

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

deference to state courts by conflating error (even clear

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

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

application of federal law is different from an incorrect

application of federal law.”).

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

citations modified).

B. Ineffective Assistance of Counsel

“The Sixth Amendment guarantees criminal defendants effective

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

performance falls below an objective standard of reasonableness and thereby

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

be followed.” 466 U.S. at 697.

Further, “[t]he question is not whether a federal court believes the state

court’s determination under the Strickland standard was incorrect but whether

that determination was unreasonable - a substantially higher threshold.”

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

there is “any reasonable argument that counsel satisfied Strickland’s

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

decision denying the claim. Richter, 562 U.S. at 105. As such, “[s]urmounting

Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356,

371 (2010). “Reviewing courts apply a ‘strong presumption’ that counsel’s

representation was ‘within the wide range of reasonable professional

assistance.’” Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th

Cir. 2016) (quoting Strickland, 466 U.S. at 689). “When this presumption is

combined with § 2254(d), the result is double deference to the state court ruling

on counsel’s performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans

v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc)

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

2004).

III. Procedural History

The State of Florida charged Petitioner by amended information with

three counts of sexual battery on a person less than 12 years of age (Counts 1-

3),2 one count of lewd and lascivious molestation (Count 4), and one count of

promoting a sexual performance (Count 5). Ex. A at 45. Petitioner proceeded to

a jury trial, see Ex. B, at the conclusion of which the jury returned guilty

verdicts on Counts 1, 3, and 4, and not guilty verdicts on Counts 2 and 5, Ex. A

at 76-80. The trial court sentenced Petitioner to a mandatory term of natural

life on both Counts 1 and 3, and 25 years on Count 4, with the sentences on

Counts 3 and 4 to run concurrent with the sentence on Count 1. Id. at 90-92.

Petitioner filed a direct appeal, and he subsequently filed postconviction

motions pursuant to Florida Rule of Criminal Procedure 3.850. Petitioner then

filed the instant case raising five grounds for relief.

2 The sexual conduct charged in each count was as follows: Petitioner placed his penis

in or upon R.G.’s vagina (Count 1); Petitioner placed his mouth upon R.G.’s vagina

(Count 2); and Petitioner digitally penetrated R.G.’s vagina (Count 3).

IV. Analysis

A. Ground One

Petitioner argues that the trial court erred by denying his motion to

suppress statements that he made to police when he did not have access to an

appropriate interpreter. Doc. 1 at 7.

Prior to trial, Petitioner, through trial counsel, filed a motion to suppress

the statements he made in his interview with police. Ex. A at 50-51. He argued

that the Miranda3 warnings and interrogation were conducted in Spanish, but

Petitioner’s native language is Mayan Mam, and he “was not able to understand

his rights or the conversation.” Id. The trial court held a hearing on the motion,

during which it heard testimony from Petitioner and the detective who

conducted the interview (Detective Nanette Lamb). See id. at 185-206. At the

conclusion of the hearing, the trial judge denied the motion, explaining as

follows:

The Court actually reviewed the DVD [of the

interview] multiple times carefully with the

transcript, and after reviewing it – and of course

hearing the Detective’s testimony, it is clear to me that

this defendant understood Spanish, understood what

he was being told, understood what he was waiving.

He had questions about the Miranda rights, but he

asked them in Spanish and got a response in Spanish.

So based on the totality of the circumstances, I

have to agree with Judge Borello. I think this

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

defendant does not necessarily need this Mam

interpreter, but we will certainly provide it. That he

freely and voluntarily waiving [sic] his Miranda rights

with the full understanding of what he was doing, and

agreed to speak with the Detective. So I will deny the

Motion to Suppress.

Id. at 200-01.

On direct appeal, Petitioner argued that “the State did not meet its

burden of showing that [Petitioner] knowingly and intelligently waived his

right against self-incrimination and his right to counsel before speaking with

Detective Lamb.” Ex. C at 19. Petitioner contended that “the trial court erred

because it focused too narrowly on whether [Petitioner] spoke any Spanish, and

did not take the totality of the circumstances into account.” Id. at 24-25.

According to Petitioner, the trial court’s limited colloquy about Petitioner’s age,

education, and family “did not include any abstract concepts and thus, gave the

court no real indication of whether he could understand such concepts in

Spanish, without a Mam translator to assist.” Id. at 25. The state responded on

the merits. See Ex. G. Petitioner filed a counseled reply brief. See Ex. H.

In a written opinion, the First District Court of Appeal affirmed the trial

court’s decision, reasoning, in pertinent part, as follows:

The appellant is a native of Guatemala and

primarily speaks a dialect of the Mayan language,

Mayan Mam, along with some Spanish. The State filed

sexual battery and lewd and lascivious molestation

charges against the twenty-two-year-old appellant,

claiming he molested his niece who was between eight

and nine years old at the time. After he was identified

as a suspect, the appellant was detained and

interviewed by a Spanish-speaking detective. At the

outset of the interview, the appellant told the detective

that he only spoke a little English, but he did speak

Spanish. The detective asked the appellant several

questions in Spanish about his background and

reviewed his constitutional rights. The appellant was

sufficiently able to answer the questions and voiced an

understanding of his rights. The appellant signed a

Miranda[] waiver form and was able to read the first

line aloud to the detective. After affirmatively waiving

his rights, the appellant agreed to speak with the

detective and provided several incriminating

statements.

The appellant later moved to suppress the

statements, arguing that they were obtained in

violation of his privilege against self-incrimination

and his right to counsel because he did not understand

his Miranda rights and the interview, which were

conducted in Spanish instead of Mayan Mam. The

appellant argued that his limited education further

impeded his ability to understand his legal rights. The

State responded that the appellant never conveyed

that he could not understand Spanish, never asked for

a Mayan Mam interpreter, and had agreed to talk with

the detective after affirmatively waiving his Miranda

rights. The trial court denied the motion to suppress

upon the “totality of the circumstances,” which

included its review of the DVD and transcript of the

interview and consideration of the testimony and

argument at the suppression hearing.[FN] It found the

appellant understood Spanish enough to freely and

voluntarily waive his Miranda rights with a full

understanding of what he was doing and he had

agreed to speak with the detective.

FN The court also considered the

observations of a previous judge who had

presided over an earlier hearing on child

hearsay evidence, which the appellant does not

challenge on appeal. The previous judge had

denied the appellant’s request to delay the

proceedings in order to find a Mayan Mam

interpreter. The previous judge personally

observed that the appellant had a sufficient

command of Spanish such that continuing the

proceedings with a Spanish interpreter would

not jeopardize his constitutional rights. While

declining to delay the proceedings, defense

counsel was allowed to continue to search for a

Mayan Mam interpreter. One was eventually

located and was present for the appellant’s

suppression hearing through the remainder of

trial.

. . . .

The State carried the burden to prove the

appellant waived his Miranda rights by a

preponderance of the evidence. Balthazar v. State, 549

So. 2d 661, 662 (Fla. 1989). In order to waive Miranda

rights, the waiver must be made “voluntarily,

knowingly and intelligently.” Murdock v. State, 115

So. 3d 1050, 1055 (Fla. 4th DCA 2013) (citations

omitted). The burden of proving voluntariness is

“heavier” when a defendant claims a language barrier,

but the standard of proof remains the same.

Balthazar, 549 So. 2d at 662. The appellant does not

claim that his waiver was the product of intimidation,

coercion, or deception. Therefore, the totality of the

circumstances must show that his waiver was made

with a full awareness of the rights he was abandoning

and the consequences of the abandonment. Murdock,

115 So. 3d at 1055 (citing Louis v. State, 855 So. 2d

253, 255 (Fla. 4th DCA 2003)).

The trial judge’s finding that the appellant

understood Spanish well enough to freely and

voluntarily waive his Miranda rights with a full

understanding of what he was doing is supported by

competent, substantial evidence. The appellant was

able to sufficiently answer the detective’s background

questions in Spanish, and he acknowledged he

understood the rights he was waiving. The appellant

argues that the trial judge failed to consider factors

beyond his language barrier; however, her ruling was

made upon consideration of the “totality of the

circumstances.” While the appellant did state he only

had a second-grade education, there was no indication

that he had anything but average intelligence. His

answers to the detective’s questions indicated he had

a sufficient understanding of the judicial system. For

example, when asked if he knew what a lawyer was,

the appellant stated it was someone to advocate for

him. After the appellant affirmatively waived his

rights, the interview continued in Spanish wherein the

appellant provided a detailed account of his actions

against his niece. Accordingly, the trial judge

appropriately denied the motion to suppress, allowing

for the admission of the appellant’s incriminating

statements.

Ex. I at 4-5 (footnote omitted); Martin-Godinez v. State, 225 So. 3d 926, 927-28

(Fla. 1st DCA 2017).

The Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. The transcript of

the police interview reflects that Petitioner acknowledged at the beginning of

the interview that he spoke Spanish, so Detective Lamb conducted the

interview in Spanish. See Ex. F at 10. Detective Lamb reviewed Petitioner’s

rights with him, and Petitioner signed a waiver form. See id. at 13-14. He

answered Detective Lamb’s questions, and ultimately confessed to some of the

charged conduct. See id. at 16-27. The First DCA acknowledged that the trial

court reviewed the DVD of the interview and based its ruling on the “totality of

the circumstances.” Upon thorough review of the record, the Court finds that

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

unreasonable application of, clearly established federal law. Nor was the state

court’s adjudication based on an unreasonable determination of the facts given

the evidence presented in the state court proceedings. As such, Ground One is

denied.

B. Ground Two

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

to the video of the victim’s interview with the Child Protection Team (CPT)

being allowed in the jury room during deliberations. Doc. 1 at 10.

On August 21, 2018, Petitioner filed a pro se motion for postconviction

relief under Florida Rule of Criminal Procedure 3.850. See Ex. K at 1-11. He

argued that his trial counsel was ineffective for failing to object to the video

evidence of the victim’s CPT interview being allowed in the jury room during

deliberations. See id. at 2-5. On September 24, 2018, the trial court summarily

denied his motion. See id. 18-22. On appeal, the First DCA reversed and

remanded on this claim, finding in pertinent part:

The trial court denied Martin-Godinez’s claim

regarding the CPT interview videotape, concluding

that the video was entered into evidence and therefore

it was proper to send it back into the jury room

pursuant to Florida Rule of Criminal Procedure

3.400(a)(3). We disagree. “[V]ideotaped out-of-court

interviews with child victims introduced into evidence

under section 90.803(23)[, Florida Statutes,] shall not

be allowed into the jury room during deliberations.”

Young v. State, 645 So. 2d 965, 967 (Fla. 1994). Trial

counsel can be deemed ineffective for failing to object

to a videotaped CPT interview being sent to the jury

room during deliberations where this omission results

in prejudice. See McLevy v. State, 849 So. 2d 431, 432

(Fla. 1st DCA 2003); see also Otero v. State, 169 So. 3d

231 (Fla. 2d DCA 2015).

Nonetheless, we hold that Martin-Godinez did

not demonstrate an entitlement to an evidentiary

hearing on this claim, because he did not make a

sufficient allegation of prejudice.[] To prove ineffective

assistance a defendant must allege (1) the specific acts

or omissions of counsel which fell below a standard of

reasonableness under prevailing professional norms

and (2) that the defendant’s case was prejudiced by

these acts or omissions such that the outcome of the

case would have been different. Strickland v.

Washington, 466 U.S. 668, 690-92 (1984). The

prejudice prong requires that the defendant

demonstrate a reasonable probability that, but for

counsel’s errors, the result of the proceeding would

have been different. See id. at 694. A defendant must

allege sufficient facts to demonstrate “how the

outcome would have been different had counsel acted

otherwise” in order to merit an evidentiary hearing.

Ragsdale v. State, 720 So. 2d 203, 208 (Fla. 1998).

Regardless of whether counsel should have objected to

the videotape being given to the jury, Martin-Godinez

made an insufficient allegation of prejudice to

overcome a summary denial of this claim.

Martin-Godinez did not allege that “but for

counsel’s errors, the result of the proceeding would

have been different.” Instead, he alleged that if

counsel had objected, he would have received relief on

direct appeal, where the harmless error standard

would have resulted in reversal.[] If counsel had done

so, Martin-Godinez reasons, he would not have to

prove prejudice under the considerably more difficult

standard under Strickland.

We reject the argument that a defendant can

demonstrate prejudice under Strickland by arguing

that if counsel had objected, the defendant would have

secured relief on direct appeal. First, it does not allege

that the result of the proceeding would have been

different, as Strickland requires. More importantly, it

implies that, had counsel objected, the court would

have erroneously overruled the objection, thus giving

the defendant a ground for appeal. This argument does

not demonstrate prejudice under Strickland. See

Carratelli v. State, 961 So. 2d 312, 323 (Fla. 2007)

(holding that “a defendant alleging that counsel was

ineffective for failing to object or preserve a claim of

reversible error in jury selection must demonstrate

prejudice at the trial, not on appeal.”); Strobridge v.

State, 1 So. 3d 1240, 1242 (Fla. 4th DCA 2009) (“The

prejudice in counsel’s deficient performance [in failing

to preserve error for appeal] is assessed based upon its

effect on the results at trial, not on its effect on

appeal.”). Moreover, this implication runs contrary to

well-settled law that an appellate court presumes that

a trial court correctly applies the law. See, e.g., Doe v.

Baptist Primary Care, Inc., 177 So. 3d 669, 673 (Fla.

1st DCA 2015) (noting that “the decision of the trial

court enjoys a presumption of correctness and the

burden falls to the appellant to demonstrate error”).

Presumably, if counsel had made a proper objection,

the court would have granted it, and the defendant

would have had no appellate issue. As such, the

defendant can only secure relief (or at least an

evidentiary hearing) by alleging facts showing that the

result of the proceeding would have been different but

for counsel’s errors.

Because Martin-Godinez’s first claim is facially

insufficient and not conclusively refuted by the record,

we reverse and remand so that the postconviction

court may strike the claim and provide sixty days to

amend it.

Ex. N at 4 (citations modified); Martin-Godinez v. State, 290 So. 3d 144, 145-47

(Fla. 1st DCA 2020).

On remand, Petitioner filed an amended Rule 3.850 motion on February

7, 2020. See Ex. P at 125-30. He again argued that the video recording of the

out-of-court interview with the child victim should not have been permitted in

the jury room during deliberations, and his trial counsel was ineffective for

failing to object. See id. at 126-29. The state filed a response. See id. at 150-58.

The postconviction court again summarily denied this claim:

Defendant asserts that videotaped interviews

with child victims are not allowed in the jury room

during deliberations, citing Young v. State, 645 So. 2d

965, 967 (Fla. 1994),[] and Florida Rule of Criminal

Procedure 3.400(a)(4) and (d). He acknowledges the

issue was raised on appeal but the appellate court

found no fundamental error.[4] Therefore, he argues,

counsel should have made a contemporaneous

objection when the CPT . . . video and a laptop were

provided to the jury during deliberations in his trial.

The State raises the following persuasive

arguments:

4 Contrary to what the postconviction court stated, Petitioner did not raise this issue

on direct appeal, nor did he say so in this amended Rule 3.850 motion. Instead, he

argued: “Although the holdings in Young and Barnes were issues presented on direct

appeal, the court found the error was not fundamental, therefore a contemporaneous

objection to allowing the video in the jury room during deliberations was necessary to

preserve the issue for direct appellate review.” Ex. P at 127.

 Defendant’s amended version of

Ground 1 is almost identical to the version in his

original Motion, which the First District Court

of Appeal found was insufficient to establish

prejudice. Martin-Godinez, 290 So. 3d at 146.

 In the CPT video, the child indicated

that Defendant had used his tongue to touch her

vagina (Count 2) and took pictures of her vagina

while she was lying down (Count 5). However,

her trial testimony was inconsistent regarding

these counts; she said that she did not remember

whether he put his mouth on her vagina and

merely stated that he took pictures of her body

with her phone.

 During the February 5, 2015, interview

with Detective Lamb, Defendant denied

committing the offenses charged in Counts 2 and

5, and he admitted the conduct charged in the

other counts. The jury acquitted him of Counts

2 and 5, and convicted him of the other counts.

This Court concludes that the jury’s acquittal of

Defendant on Counts 2 and 5 demonstrates that it did

not give unfair emphasis to the video statements. As

the State argues, the jury accepted Defendant’s

admissions and denials and rejected the child’s

statements in the CPT video when her trial testimony

was inconsistent. Therefore, Defendant cannot

establish that he was prejudiced by counsel’s failure to

object when the video was included in the evidence

sent to the jury during deliberations.

Id. at 160-61 (record citations and footnote omitted). Petitioner appealed, and

the First DCA per curiam affirmed the postconviction court’s denial of his

amended Rule 3.850 motion without issuing a written opinion. Ex. S.

The Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. Even assuming

Petitioner’s trial counsel was ineffective for failing to object to the jury having

the video evidence of the victim’s CPT interview during deliberations, Petitioner

has not shown prejudice. He has not shown a reasonable probability that the

outcome of the trial would have been different but for counsel’s alleged

ineffectiveness. Thus, upon thorough review of the record, the Court finds that

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

unreasonable application of, clearly established federal law. Nor was the state

court’s adjudication based on an unreasonable determination of the facts given

the evidence presented in the state court proceedings. As such, Ground Two is

denied.

C. Grounds Three and Four

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

to the admission of the child victim’s hearsay statement. Doc. 1 at 12, 15. He

contends that the statement was repetitive and should have been subjected to

the balancing test in Florida Statute § 90.403, and that the statement lacked

reliability (relying on Florida Statute § 9.803(23)). Id. He contends that at trial,

the CPT interviewer testified that the victim “was hesitant” during the

interview when asked whether she could tell the truth and that this information

was not elicited at the pretrial hearing on the matter. Ex. K at 7. Thus,

Petitioner argues that “[t]his assessment by the state’s expert witness [(the CPT

interviewer)] raises serious question[s] about the veracity of the CPT video

interview/hearsay evidence,” and his counsel should have objected or filed a

motion for rehearing. Id.

Prior to trial, the state filed a notice of intent to introduce child hearsay

evidence in the form of the CPT interview. Ex. A at 31. The trial court held a

hearing, during which it heard testimony from the CPT interviewer and

argument of counsel. Ex. A at 105-58. Petitioner’s trial counsel called into

question the reliability of the child-victim’s statement; and argued that it was

unclear whether the child-victim understood the difference between the truth

and a lie, her statement was inconsistent with other evidence, she had a motive

to fabricate, portions of the interview were suggestive and influenced by the

interviewer, the victim was vague regarding the timeliness of events, and that

regardless of all the arguments, the statement is still subject to “a 403 balancing

test” (i.e., weighing the probative value against the danger of unfair prejudice

to the defendant, including the possibility of confusing the issues, misleading

the jury, or presenting needless cumulative evidence). Id. at 132-41.

Specifically, she argued that the trial “court must weigh the reliability and the

probative value of a child victim’s hearsay statement against the danger that

the statement will unfairly prejudice the defendant and confuse the issues at

trial, mislead the jury, or result in the presentation of needlessly cumulative

evidence.” Ex. A at 140. Counsel continued:

And, basically, Your Honor, this is a 403

balancing test which still applies to this evidence, and

I just ask that in that context that we’re dealing with

a hearsay statement that would not otherwise be

admissible. And in that statement there is a danger

that it - - there is - - that there be evidence introduced

that is unreliable, which is why hearsay is not

permitted, so I would just ask that Your Honor apply

that balancing test because knowing that the witness

in this situation, this child, is going to come to court

and testify and be subject to cross-examination, and is

a perfectly appropriate way for a witness to be

questioned about what happened and for the state to

provide evidence, so I would ask that Your Honor

consider that as well.

Id. at 140-41.

Following the hearing, the trial court reviewed the video of the interview,

and orally pronounced its findings at a subsequent pretrial hearing:

THE COURT: All right. As a bottom line

the Court does - - is going to allow the child

hearsay in this case. I have reviewed as I said

the videotape as well as the evidence produced

at the hearing and considered the arguments of

both counsel under Florida statute 90.803 sub-

section 23.

I do find as a result of that hearing that

the time, content and circumstances of the

statement provides sufficient safeguards of

reliability. I have considered the mental and

physical age and maturity of the child, the

nature and duration of the abuse or offense, the

relationship of the child to the offender, the

reliability of the assertion, the reliability of child

victim and several other factors which I will

discuss in just a moment.

Specifically I find that the interview was

conducted - - of the child was conducted

appropriately, that there is no evidence that the

child was coached in any manner, that the

statements the child made concerning the

incidents in question were spontaneously made

by her and not as a result of any suggestiveness.

The child used appropriate language in

describing the events and the parts of the body,

both hers and the offender that are in question,

that the child specifically knows the difference

between a truth and a lie, that her answers were

not vague, that she had a specific recollection of

the events that occurred both as to the time of

the events, the number of events and the

location of the events.

Specifically the child also described a

picture or video taken by the defendant on the

phone in addition to the actual events that - -

where she described on a number of occasions

that her uncle who she named specifically had

touched her which she described as her private

part and the video has the language I don’t feel

the need to repeat it here today.

I specifically find that any inconsistencies

that may have occurred in her testimony on the

video are minor and they do not vitiate the

reliability and trustworthiness of her overall

statements. . . .

Again as to the location she was able to

describe times, dates and locations, bathroom,

bedroom. All right. For those reasons as I said

the Court will overrule the objection to the

admissibility of the child hearsay statements,

and I believe the state had filed a notice and will

allow those statements to go forward.

Ex. A at 167-70.

Defense counsel subsequently filed a motion for rehearing, arguing that

Petitioner did not understand what was happening during the hearing because

he was provided with a Spanish interpreter, but his native language is Mayan

Mam. Ex. A at 40. The trial court heard argument at a pretrial hearing, during

which defense counsel acknowledged that she would not have done anything

differently at the prior hearing on the state’s notice of intent to introduce the

child hearsay statements even if a Mam interpreter had been present:

THE COURT: And, Ms. Zerbe, is there anything

different that you would have done in your

presentation of the evidence at the hearing had you

had a Mam interpreter at that time to your

knowledge?

MS. ZERBE: To my knowledge, no. The only thing I

can speak of is the communication with my client

before that hearing was basically none, and it was

impossible for me to tell if that was because he didn’t

understand or because he wasn’t communicating with

me very much.

Id. at 180. The state argued:

Your Honor, at the hearing that was conducted

in October, you did a colloquy with the defendant to

determine whether or not he had the ability to

understand the Spanish interpreter. Based on that

colloquy, you made findings that he was able to

understand what was going on at that hearing,

perhaps not the technical legal arguments that were

being made, but as to the form and substance of what

was going on. The state requests that you rely on that

colloquy at that time.

Id. at 180-81. The trial court denied the motion for rehearing. Id. at 181-82.

During the trial, the videotape of the victim’s CPT interview was played

for the jury and admitted into evidence. See Ex. B at 202-53.

In Petitioner’s original Rule 3.850 motion, he raised the same two claims

regarding the child hearsay statements that he raises in the Petition as

Grounds Three and Four. See Ex. K at 5-8. The postconviction court summarily

denied the claims:

In Grounds Two and Three, Defendant alleges

counsel was ineffective for failing to object to the child

hearsay evidence on the basis of prejudice and on the

basis of reliability. At issue is Section 90.803(23) titled

HEARSAY EXCEPTION; STATEMENT OF CHILD

VICTIM OF SEXUAL ABUSE OR SEXUAL

OFFENSE AGAINST A CHILD which provides:

(a) Unless the source of information or the

method or circumstances by which the

statement is reported indicates a lack of

trustworthiness, an out-of-court statement

made-by a child victim with a physical, mental,

emotional, or developmental age of 11 or less

describing any act of child abuse or neglect,

sexual abuse, or any other offense involving an

unlawful sexual act, contact, intrusion, or

penetration performed in the presence of, with,

by, or on the declarant child, not otherwise

admissible, is admissible in evidence in any

civil or criminal proceeding if:

1. The court finds in a hearing conducted

outside the presence of the jury that the time,

content, and circumstances of the statement

provide sufficient safeguards of reliability. In

making its determination, the court may

consider the mental and physical age and

maturity of the child, the nature and duration

of the abuse or offense, the relationship of the

child to the offender, the reliability of the

assertion, the reliability of the child victim,

and any other factor deemed appropriate; and

2. The child either:

a. Testifies; or

b. Is unavailable as a witness, provided that

there is other corroborative evidence of the

abuse or offense. Unavailability shall include a

finding by the court that the child’s

participation in the trial or proceeding would

result in a substantial likelihood of severe

emotional or mental harm, in addition to

findings pursuant to s. 90.804(1).

For a hearsay statement to be admitted under

this section, the statement must meet two specific

reliability requirements: (1) the source of the

information through which the statement was

reported must indicate trustworthiness; and (2) the

time, content, and circumstances of the statement

must reflect that the statement provides sufficient

safeguards of reliability. State v. Townsend, 635 So. 2d

949, 954 (Fla. 1994). The court is required, in a hearing

conducted outside the presence of the jury, to

determine whether a hearsay statement is

trustworthy and reliable by examining the “time,

content, and circumstances” of the statement.

Specifically, in examining the time, content, and

circumstances of the hearsay statement, the court may

consider the mental and physical age and maturity of

the child, the nature and duration of the abuse or

offense, the relationship of the child to the offender,

the reliability of the assertion, the reliability of the

child victim, and any other factor deemed appropriate.

§ 90.803(23)(a)(l). Other factors may include, but are

not limited to, a consideration of the statement’s

spontaneity; whether the statement was made at the

first available opportunity following the alleged

incident; whether the statement was elicited in

response to questions from adults; the mental state of

the child when the abuse was reported; whether the

statement consisted of a child-like description of the

act; whether the child used terminology unexpected of

a child of similar age; the motive or lack thereof to

fabricate the statement; the ability of the child to

distinguish between reality and fantasy; the

vagueness of the accusations; the possibility of any

improper influence on the child by participants

involved in a domestic dispute; and contradictions in

the accusation. Townsend, 635 So. 2d at 957-58.

In the instant case the state filed a notice of

hearsay. After a hearing, the Court allowed the

hearsay testimony to be admitted in evidence

pursuant to Florida statutes. The Defense requested a

Rehearing which was denied by the Court. At trial the

Defense renewed her objection thus preserving this

issue for appeal.

Ex. K at 19-21 (record citations omitted). While not explicitly stated, it appears

the postconviction court found that trial counsel was not deficient in the manner

Petitioner suggests. Petitioner appealed the denial of his Rule 3.850 motion,

and the First DCA affirmed the denial of these claims without comment. Ex. N

at 2 n.1 (“We affirm the denial of Grounds Two through Four of Martin-

Godinez’s motion without further comment.”).

The Court addresses these claims in accordance with the deferential

standard for federal court review of state court adjudications. Even assuming

deficient performance, Petitioner has not shown prejudice. He fails to show that

a reasonable probability exists that, but for counsel’s alleged deficiency, the

outcome of his trial would have been different. Upon thorough review of the

record, the Court finds that the state court’s adjudication of these claims was

neither contrary to, nor an unreasonable application of, clearly established

federal law. Nor was the state court’s adjudication based on an unreasonable

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

proceedings. As such, Grounds Three and Four are denied.

D. Ground Five

Petitioner argues that his trial counsel was ineffective for failing to

follow-up on a motion for statement of particulars that was filed to narrow the

alleged time period of the charged crimes. Doc. 1 at 17.

The information and amended information charged Petitioner with

various sexual crimes against a minor spanning from June 13, 2013 to February

2, 2015. Ex. A at 17, 45. On March 10, 2015, Petitioner’s trial counsel filed a

motion for statement of particulars requesting the State “file a written

statement of particulars with the Court specifying as definitely as possible the

place, date and time of the offense(s) charged in the Information(s).” Id. at 26.

It does not appear from the record that the trial court ever ruled on this motion.

Petitioner then raised this claim in his original Rule 3.850 motion. Ex. K

at 8-9. The state court summarily denied it:

In Ground Four, Defendant alleges counsel was

ineffective for failing to follow up on a motion for

statement of particulars. The defendant made a

motion for statement of particular. The state filed an

information charging the period of time for the

commission of the offense. A defendant is not

necessarily entitled to a bill of particulars absent

showing of lack of notice, prejudice, surprise or

inability to prepare adequate defense[.] Harrison v.

State, 557 So.2d 151 (Fla. 4th DCA 1990)[.] In the

instant case, the defendant has the benefit of the

liberal discovery afforded under Florida Rules of

Criminal Procedure, Rule 3.220. Moreover, the

defense had the opportunity to take discovery

depositions of the State witnesses. Unlike many

jurisdictions, discovery depositions are permitted in

criminal cases in Florida; this defendant has the

benefit of liberal discovery including the option of

taking discovery depositions. This extensive and

liberal pre-trial discovery tends to obviate the need for

a statement of particulars. See[] United States v. Bin

Laden, 92 F. Supp. 2d 225 (S.D.N.Y. 2000). The case

law is clear that the state would have a right to amend

the information or to amend the statement of

particulars. Holland v. State, 359 So. 2d 28 ([Fla.] 3rd

DCA 1978) (amendment of information and bill of

particulars during trial with reference to date of death

of victim was not error); Young v. State, 632 So. 2d 245

([Fla.] 3rd DCA 1994); Rosser v. State, 658 So. 2d 175

([Fla.] 3rd DCA 1995) (the State may substantively

amend its charging document, even over the objection

of the defendant, unless there is a showing of prejudice

to the substantial rights of the defendant); Taylor v.

State, 401 So. 2d 812 ([Fla.] 5th DCA 1981), approved

444 So.2d 931 (In prosecution for first-degree murder

and attempted first-degree murder, trial court did not

err in allowing amendment to statement of particulars

to permit prosecution to permit addition of year and to

add ten hours to period of time in which deaths were

alleged to have occurred.). Thus, any failure by counsel

to follow up on the statement of particulars had no

impact in the instant case.

Thus, the Defendant has failed to show that

counsel erred or that there is a reasonable probability

that had counsel acted as the Defendant suggests [s]he

should have that the outcome would have been any

different. Accordingly, this Court finds the Defendant

has not established error on the part of counsel that

prejudiced his case. Strickland, 446 U.S. 668.

Ex. K at 21-22. Petitioner appealed, and the First DCA affirmed the denial of

these claims without comment. Ex. N at 2 n.1 (“We affirm the denial of Grounds

Two through Four of Martin-Godinez’s motion without further comment.”).

The Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. In cases involving

child molestation and sexual abuse, Florida law recognizes “there will often be

vagueness with respect to the actual dates in which the crimes occur[].” Ramos

v. State, 75 So. 3d 1277, 1283 (Fla. 4th DCA 2011) (citing Gamble v. State, 870

So. 2d 110 (Fla. 2d DCA 2003)). Considering the record, along with the evidence

presented including Petitioner’s confession, even assuming trial counsel was

ineffective for failing to ensure this motion was ruled upon, Petitioner has not

shown prejudice. He has not shown that a reasonable probability exists that the

outcome of his trial would have been different had counsel followed up to obtain

a ruling on this motion. Therefore, upon thorough review of the record, the

Court finds that the state court’s adjudication of this claim was neither contrary

to, nor an unreasonable application of, clearly established federal law. Nor was

the state court’s adjudication based on an unreasonable determination of the

facts given the evidence presented in the state court proceedings. As such,

Ground Five is denied.

Accordingly, it is

ORDERED:

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

with prejudice.

2. If Petitioner appeals, the Court denies a certificate of appealability.

Because the Court has determined that a certificate of appealability is not

warranted, the Clerk shall terminate from the pending motions report any

motion to proceed on appeal as a pauper that may be filed in this case. Such

termination shall serve as a denial of the motion.5

5 The Court should issue a certificate of appealability only if the Petitioner makes “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To

make this substantial showing, Petitioner “must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529

U.S. 473, 484 (2000)), or that “the issues presented were ‘adequate to deserve

encouragement to proceed further.’” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003)

(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Here, after consideration

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

3. The Clerk shall enter judgment dismissing this case with

prejudice, terminate any pending motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, this day of August,

2024.

. Cimetbag g. Corrig an

Ww. TIMOTHY J. CORRIGAN

United States District Judge

JAX-3 7/22

C:

Reynaldo Martin-Godinez, #J56899

Counsel of Record

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