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

> District Court, M.D. Florida · August 6, 2024

URL: https://www.frixlaw.com/law-library/cases/10642582

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 6, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10642582

## How later opinions describe it (automated extraction)

- 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.”

## Opinion text

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

29

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10642582. Public record. Not legal advice.