# Jennings v. Secretary, Department of Corrections (Sarasota County)

> District Court, M.D. Florida · September 5, 2024

URL: https://www.frixlaw.com/law-library/cases/10642898

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 5, 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/10642898

## How later opinions describe it (automated extraction)

- noting that counsel “is not ineffective for failing to raise claims reasonably considered to be without merit”
- noting that “[a] lawyer cannot be deficient for failing to raise a meritless claim”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

DOUGLAS A. JENNINGS,

Petitioner,

v. Case No. 8:23-cv-951-WFJ-AEP

SECRETARY, DEPARTMENT
OF CORRECTIONS,

Respondent.
/

ORDER

Douglas A. Jennings, a Florida prisoner, timely filed a pro se petition for writ of
habeas corpus under 28 U.S.C. § 2254. (Doc. 1; see also Doc. 3). Respondent filed a
response opposing the petition. (Doc. 11). Mr. Jennings filed a reply. (Doc. 14). After
careful review, the petition is DENIED.
I. Background
From May 2010 to May 2015, Mr. Jennings shared a house in Sarasota, Florida with
his girlfriend Sharon Young and her four children. (Doc. 11-2, Ex. 16, at 278-79, 294, 297).
One of the children—M.B.—was eleven years old in the summer of 2013. (Id. at 135). One
night that summer, Mr. Jennings entered M.B.’s bedroom, lay down next to her, and
touched her buttocks and vagina. (Id. at 146-48). On another occasion, Mr. Jennings
entered M.B.’s room, “pulled down his pants,” and asked her whether she “wanted to play
with something.” (Id. at 149). Similar incidents happened “[a] lot” that summer. (Id. at
149-50). M.B. did not disclose the abuse at the time because she was “scared” and Mr.
Jennings had instructed her “not to tell [her] mom.” (Id. at 151).

The abuse came to light almost two years later, on May 1, 2015. (Id. at 287-88).
M.B.’s grades had “started to come down a lot,” and her mother had urged her to “figure
out how she could fix them.” (Id. at 283-84). That day, while M.B. was in school, she sent
her mother a text message “explaining why her grades were bad.” (Id. at 285, 288). The
text listed several “[p]roblems” in M.B.’s life, including “stepdad molested me.” (Id. at
288). After receiving this text, M.B.’s mother left work early to pick her daughter up at

school. (Id. at 292). During the ensuing conversation, M.B. told her mother that on one
occasion, Mr. Jennings “had gotten into bed with her and put his hands in her pants,” and
that on another occasion, he had “come into her room[,] pulled down his pants[,] and
exposed himself and kind of wagged his penis at her.” (Id. at 294). M.B. subsequently
provided a similar description of the abuse during a forensic interview with a member of

the Sarasota County Child Protection Team. (Id. at 216-38).
Although Mr. Jennings was tried only for his molestation of M.B., the jury also
heard about his sexual abuse of C.B., M.B.’s older sister. C.B. was fourteen years old in
the summer of 2013. (Id. at 199). One evening, Mr. Jennings drunkenly entered C.B.’s
bedroom, began giving her a “back massage,” and “undid [her] bra.” (Id. at 201). During

the “massage,” Mr. Jennings “squeezed” C.B.’s buttocks. (Id.) The next morning, Mr.
Jennings came back “crying” and said he “sometimes . . . forg[ot] his place.” (Id.) On
another occasion, Mr. Jennings entered C.B.’s room, lay next to her on the bed, and said
he “had a crush on [her] and that [she] wasn’t allowed to tell [her] mom that.” (Id.)
During a subsequent interview with law enforcement, Mr. Jennings denied any
inappropriate touching of M.B. (Id. at 357-58). He also said he could not recall “touching

[C.B.] on the butt.” (Id. at 356). He admitted, however, that he had unhooked C.B.’s bra
while “rubbing her back.” (Id.)
The jury found Mr. Jennings guilty of lewd or lascivious molestation of a child
under twelve years of age. (Id., Ex. 17). The trial court sentenced him to thirty years in
prison. (Id., Ex. 22, at 21). Following an unsuccessful direct appeal, Jennings v. State, 241
So. 3d 777 (Fla. 2d DCA 2017), Mr. Jennings moved for postconviction relief under

Florida Rule of Criminal Procedure 3.850, (Doc. 11-2, Exs. 36, 39). The postconviction
court denied relief, and the appellate court affirmed. (Doc. 11-2, Exs. 41, 45, 51). This
federal habeas petition followed. (Doc. 1).
II. Standards of Review
A. AEDPA

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this
proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief
can be granted only if a petitioner is in custody “in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254(d) provides that federal
habeas relief cannot be granted on a claim adjudicated on the merits in state court unless

the state court’s adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.

A decision is “contrary to” clearly established federal law “if the state court arrives
at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if
the state court decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A decision involves
an “unreasonable application” of clearly established federal law “if the state court identifies
the correct governing legal principle from [the Supreme] Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.” Id.
AEDPA was meant “to prevent federal habeas ‘retrials’ and to ensure that state-
court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S.

685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state court’s application
of clearly established federal law is objectively unreasonable, and . . . an unreasonable
application is different from an incorrect one.” Id. at 694; see also Harrington v. Richter,
562 U.S. 86, 103 (2011) (“As a condition for obtaining habeas corpus from a federal court,
a state prisoner must show that the state court’s ruling on the claim being presented in

federal court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.”).
The state appellate court affirmed Mr. Jennings’s conviction, as well as the denial
of postconviction relief, without discussion. These decisions warrant deference under
§ 2254(d)(1) because “the summary nature of a state court’s decision does not lessen the

deference that it is due.” Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002). When a
state appellate court issues a silent affirmance, “the federal court should ‘look through’ the
unexplained decision to the last related state-court decision that does provide a relevant

rationale” and “presume that the unexplained decision adopted the same reasoning.”
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
B. Exhaustion of State Remedies; Procedural Default
A federal habeas petitioner must exhaust his claims in state court before presenting
them in his federal habeas petition. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526
U.S. 838, 842 (1999) (“[T]he state prisoner must give the state courts an opportunity to act

on his claims before he presents those claims to a federal court in a habeas petition.”). The
exhaustion requirement is satisfied if the petitioner fairly presents his claim in each
appropriate state court and alerts that court to the federal nature of the claim. Picard v.
Connor, 404 U.S. 270, 275-76 (1971).
The doctrine of procedural default provides that “[i]f the petitioner has failed to

exhaust state remedies that are no longer available, that failure is a procedural default which
will bar federal habeas relief, unless either the cause and prejudice or the fundamental
miscarriage of justice exception is established.” Smith v. Jones, 256 F.3d 1135, 1138 (11th
Cir. 2001). A fundamental miscarriage of justice occurs in an extraordinary case where a
constitutional violation has probably resulted in the conviction of someone who is actually

innocent. Schlup v. Delo, 513 U.S. 298, 327 (1995); Henderson v. Campbell, 353 F.3d 880,
892 (11th Cir. 2003). To establish cause for a procedural default, a petitioner “must
demonstrate that some objective factor external to the defense impeded the effort to raise
the claim properly in state court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999).
A petitioner demonstrates prejudice by showing that “there is at least a reasonable
probability that the result of the proceeding would have been different” absent the

constitutional violation. Henderson, 353 F.3d at 892.
C. Ineffective Assistance of Counsel
Mr. Jennings alleges ineffective assistance of trial counsel. Ineffective-assistance-
of-counsel claims are analyzed under the test established in Strickland v. Washington, 466
U.S. 668 (1984). Strickland requires a showing of deficient performance by counsel and
resulting prejudice. Id. at 687. Deficient performance is established if, “in light of all the

circumstances, the identified acts or omissions [of counsel] were outside the wide range of
professionally competent assistance.” Id. at 690. However, “counsel is strongly presumed
to have rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Id.
Mr. Jennings must show that counsel’s alleged error prejudiced the defense because

“[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside
the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at
691. To demonstrate prejudice, Mr. Jennings must show “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694.
Obtaining relief on a claim of ineffective assistance of counsel is difficult on federal
habeas review because “[t]he standards created by Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem, review is doubly so.” Richter, 562 U.S. at
105 (internal quotation and citations omitted); see also Pooler v. Sec’y, Dep’t of Corr., 702
F.3d 1252, 1270 (11th Cir. 2012) (“Because we must view Pooler’s ineffective counsel

claim—which is governed by the deferential Strickland test—through the lens of AEDPA
deference, the resulting standard of review is doubly deferential.”). “The question [on
federal habeas review of an ineffective-assistance claim] ‘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) (quoting Schriro v. Landrigan, 550 U.S. 465, 473

(2007)).
III. Discussion
A. Ground One—Exclusion of M.B.’s “Handwritten Cards” to Mr.
Jennings

Mr. Jennings contends that the trial court violated his constitutional rights by
excluding “handwritten cards . . . written to [him] by M.B.” (Doc. 1 at 11-12). M.B. wrote
the cards in “mid-March 2015”—approximately two months before she told her mother
that Mr. Jennings had sexually abused her during the summer of 2013. (Id. at 12). M.B.
signed one card as “your favorite” and included a hand-drawn heart. (Doc. 11-2, Ex. 57, at
874). This card read, “To: Chef Wizard. . . . Happy Doug Day! I love you the most because
. . . well, do you see any other card?” (Id. at 874-75). Another card said, “Happy Doug
Day[.] I don’t usually make cards for muggles, but it seemed legit today.” (Id. at 873). And
in a third card, M.B. wrote, “Happy Doug Day. . . . I hope you like you[r] presents[.]

Sincerely, your favorite.” (Id. at 876). According to Mr. Jennings, the cards “convey[ed] .
. . affection toward [him] less than 60 days before M.B.” accused him of sexual abuse.
(Doc. 1 at 13). Thus, in Mr. Jennings’s view, the cards showed that M.B.’s accusations

“were just recent fabrications.” (Id. at 14).
The prosecution sought to preclude Mr. Jennings from introducing the cards as
“extrinsic evidence.” (Doc. 11-2, Ex. 16, at 14-15). The trial court excluded the physical
copies of the cards but allowed Mr. Jennings to cross-examine M.B. about their contents.
(Id. at 194). For example, M.B. admitted on cross-examination that “60 days prior to . . .
making this accusation,” she wrote Mr. Jennings a card saying “I’m your favorite” and

“Happy Doug Day, I love you the most.” (Id. at 173-74). M.B. also conceded that she wrote
Mr. Jennings another card saying “I hope you like your presents, I love you, sincerely, your
favorite.” (Id. at 176). Through cross-examination, the jury heard the contents of each card
that M.B. wrote to Mr. Jennings in March 2015. (Id. at 173-76). Because of the court’s
ruling, however, the jury did not see the cards themselves. (Id. at 194).

Mr. Jennings now contends that the exclusion of the “physical cards” violated his
rights to due process and to present a complete defense. (Doc. 1 at 14-15). He argues that
the cards themselves “would have had a material visual impact with the jury,” thus
undermining “the credibility of the State’s only actual witness” by showing that M.B.
displayed affection for him “less than 60 days before” accusing him of sexual abuse. (Id.

at 13-14). Respondent asserts that this claim is unexhausted and procedurally defaulted.
(Doc. 11 at 6-8). The Court need not reach that issue because the claim fails on the merits.
See Dallas v. Warden, 964 F.3d 1285, 1307 (11th Cir. 2020) (“[A] federal court may skip
over the procedural default analysis if a claim would fail on the merits in any event.”).
“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment
or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the

Constitution guarantees criminal defendants a meaningful opportunity to present a
complete defense.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006). But the right to
a meaningful opportunity to present a complete defense is “subject to reasonable
restrictions.” United States v. Scheffer, 523 U.S. 303, 308 (1998). And “if the court permits
a defendant to present the essence of his desired argument to the jury, his right to present
a complete defense has not been prejudiced.” United States v. Lewis, 40 F.4th 1229, 1246

(11th Cir. 2022). “Nor does [a trial court’s] exclusion of cumulative evidence violate the
right to present a complete defense.” United States v. Ahmed, 73 F.4th 1363, 1380 (11th
Cir. 2023).
The exclusion of the handwritten cards did not violate Mr. Jennings’s right to
present a complete defense. The jury did not see the cards themselves, but M.B. admitted

on cross-examination to authoring each card, and the jury heard what M.B. had written to
Mr. Jennings. (Doc. 11-2, Ex. 16, at 173-76, 194). Indeed, M.B. even conceded that she
had included a hand-drawn “heart” on one of the cards. (Id. at 174). Based on this
testimony, defense counsel argued in closing that “six weeks prior” to accusing Mr.
Jennings of sexual abuse, M.B. had written “letters” saying “I love you the most, you’re

the coolest, you’re the Chef Wizard.” (Id. at 430). Because the court allowed Mr. Jennings
to present “the essence of his desired argument to the jury,” the exclusion of the cards did
not violate his right to present a complete defense. Lewis, 40 F.4th at 1246; see also United
States v. Nunez, 1 F.4th 976, 992 (11th Cir. 2021) (“[T]he district court allowed
[defendants] to place the key facts before the jury, so it did not violate [their] right to defend
themselves.”).

B. Ground Two, Sub-Claim A—Prosecutorial Misconduct

Mr. Jennings contends that several instances of alleged prosecutorial misconduct
violated his federal constitutional right to a “fair trial.” (Doc. 1 at 16-20). He complains,
for example, that the prosecution “failed to comply with a court order to exclude any
mention that [he] had stated he had a ‘crush’ on C.B. because it denoted a non-sexual
event.” (Id. at 17).
Respondent correctly contends that Mr. Jennings failed to exhaust this claim. (Doc.
11 at 11). Proper exhaustion requires a petitioner to “make the state court aware that the
claims asserted present federal constitutional issues.” Jimenez v. Fla. Dep’t of Corr., 481
F.3d 1337, 1342 (11th Cir. 2007). “A litigant wishing to raise a federal issue can easily
indicate the federal law basis for his claim in a state-court petition or brief, for example, by

citing in conjunction with the claim the federal source of law on which he relies or a case
deciding such a claim on federal grounds, or by simply labeling the claim ‘federal.’”
Baldwin v. Reese, 541 U.S. 27, 32 (2004). A petitioner must do more, however, than
“scatter some makeshift needles in the haystack of the state court record.” McNair v.
Campbell, 416 F.3d 1291, 1303 (11th Cir. 2005). Moreover, a petitioner “does not ‘fairly

present’ a claim to a state court if that court must read beyond a petition or a brief” to find
the “federal claim.” Baldwin, 541 U.S. at 32.
Mr. Jennings failed to squarely present his federal constitutional claim on direct
appeal. In his initial brief, he argued that “the prosecutor committed several acts of
misconduct, which, taken in their cumulative effect, prejudiced [his] right to a fair trial.”
(Doc. 11-2, Ex. 29, at 19-20). But he never asserted a violation of his federal right to a fair

trial. As the Eleventh Circuit has explained, the bare assertion that a defendant “was denied
due process and a fair trial” is “insufficient to present” a federal claim because “this
language could just be asserting a fair trial claim under the Florida Constitution and
Florida’s Due Process Clause.” Zeigler v. Crosby, 345 F.3d 1300, 1308 n.5 (11th Cir.
2003); see also Williams v. Sec’y, Dep’t of Corr., No. 8:12-cv-973-JDW-TGW, 2015 WL
4040521, at *7 (M.D. Fla. June 25, 2015) (“Petitioner’s cursory and vague statement in his

Initial Brief that ‘the State clearly violated the defendant’s right to a fair trial’. . . [was]
insufficient to present fairly to the state appellate court a federal constitutional issue.”).
Moreover, Mr. Jennings relied entirely on Florida caselaw in arguing that prosecutorial
misconduct required reversal. (Doc. 11-2, Ex. 29, at 20-30). “Under these circumstances,
[Mr. Jennings] cannot be said to have fairly apprised the state court of his federal . . .

claim.” Preston v. Sec’y, Fla. Dep’t of Corr., 785 F.3d 449, 459 (11th Cir. 2015).
Mr. Jennings cannot return to state court to present his unexhausted claim in a
second, untimely direct appeal. See Fla. R. App. P. 9.140(b)(3) (stating that a notice of
appeal must be filed within thirty days of the rendition of a sentence). As a result, this claim
is procedurally defaulted. See Smith, 256 F.3d at 1138 (“If the petitioner has failed to

exhaust state remedies that are no longer available, that failure is a procedural default which
will bar federal habeas relief, unless either the cause and prejudice or the fundamental
miscarriage of justice exception is established.”). And because Mr. Jennings has not shown
that an exception applies to overcome the default, his claim of prosecutorial misconduct is
barred from federal habeas review.

C. Ground Two, Sub-Claim B—Failure to Object to Allegedly Improper
Remarks During Closing Argument

Mr. Jennings faults trial counsel for failing to “object to . . . improper closing
arguments made by the prosecutor.” (Doc. 1 at 16). He identifies the following allegedly
improper remarks from the prosecutor’s closing argument: (1) “[I]t’s expected and it’s no
big surprise that you would have [a] disclosure by a child [of sexual abuse] that happened
a few years ago”; (2) “Of course he touched her and she didn’t want it”; (3) “This little girl
deserves justice”; and (4) M.B. was in a “nightmare from which she doesn’t get to wake
up ever for the rest of her life.” (Id. at 19-20; Doc. 3 at 10). According to Mr. Jennings,
counsel was ineffective for failing to object to these remarks. (Doc. 1 at 16).
The postconviction court rejected this claim. It began with the prosecutor’s
statement that “it was ‘expected’ and ‘no big surprise’ that a child victim would make a
disclosure years after the crime.” (Doc. 11-2, Ex. 41, at 4). The court rejected Mr.
Jennings’s argument that this statement improperly “vouched for M.B.’s credibility.” (Id.)

According to the court, the challenged statement “was an explanation for the lack of
physical forensic evidence in the case,” and it was “supported by M.B.’s testimony that she
tried to keep the abuse secret because she was scared and confused, and [Mr. Jennings] told
her not to tell her mother.” (Id.) Thus, the remark did not qualify as “[i]mproper vouching”
because it did not “suggest[] reasons to believe a witness that were not presented to the

jury or otherwise implicitly refer[] to information outside the record.” (Id.) As for the
statement, “Of course he touched her and she didn’t want it,” the court noted that (1) it
“was also supported by the direct testimony of M.B,” and (2) the prosecutor was attempting

to explain “that although [Mr. Jennings] also committed certain lesser-included offenses,
the jury must convict on the charged crime if they found him guilty.” (Id. at 4-5). Thus,
this remark also did not “amount[] to improper vouching.” (Id. at 5).
Next, the court addressed the statement that M.B. “deserves justice.” (Id.) The court
acknowledged that “it [was] well settled that ‘justice for the victim’ arguments are
improper” under Florida law. (Id. (citing Truehill v. State, 211 So. 3d 930, 950-51 (Fla.

2017))). The court noted, however, that such remarks “do not warrant a new trial where, as
here, they are singular and isolated.” (Id.) Finally, the court turned to the statement that
M.B. was in “a nightmare from which she doesn’t get to wake up ever for the rest of her
life.” (Id.) The court found that this statement “was an invited response to trial counsel’s
earlier argument that the victim was an accomplished actress and a drama queen looking

for attention, and was therefore not improper.” (Id.) In sum, the court found that counsel
was not deficient “for failing to object, ask for curative instructions, or move for a mistrial
after the prosecutor’s allegedly improper statements during closing argument.” (Id. at 4).
The rejection of this claim was reasonable. The prosecutor did not engage in
improper vouching when she sought to explain M.B.’s late disclosure, nor did she do so by

saying, “Of course he touched her and she didn’t want it.” (Doc. 3 at 10). “A prosecutor’s
remarks are improper if they attempt to bolster the credibility of a witness based on the
government’s reputation or through alluding to evidence not admitted at trial.” United
States v. Lopez, 590 F.3d 1238, 1256 (11th Cir. 2009). “To determine if the government
improperly vouched for a witness, the court must decide whether a jury could reasonably
believe that the prosecutor was indicating a personal belief in the witness’[s] credibility.”

Lopez, 590 F.3d at 1256. “This prohibition against vouching does not, however, forbid
prosecutors from arguing credibility; rather, it forbids arguing credibility based on the
reputation of the government office or on evidence not before the jury.” Id.
Here, the challenged remarks did not “amount to an explicit, personal guarantee of
credibility, such as assuring the jury that the prosecution would not have brought the case
unless the defendant was actually guilty.” United States v. Hernandez, 921 F.2d 1569, 1573

(11th Cir. 1991). Instead, as the postconviction court explained, both statements rested on
“the evidence admitted” at trial. United States v. Hope, 608 F. App’x 831, 841 (11th Cir.
2015). “[A]n attorney is allowed to argue . . . credibility of witnesses or any other relevant
issue so long as the argument is based on the evidence.” Miller v. State, 926 So. 2d 1243,
1254-55 (Fla. 2006). Because the challenged remarks did not amount to improper

vouching, counsel was not deficient for failing to object on that basis. See Freeman v. Atty.
Gen., 536 F.3d 1225, 1233 (11th Cir. 2008) (noting that “[a] lawyer cannot be deficient for
failing to raise a meritless claim”).
Nor did counsel provide ineffective assistance by failing to object to the statements
that M.B. “deserves justice” and was in a “nightmare from which she doesn’t get to wake

up ever for the rest of her life.” (Doc. 3 at 10). As the postconviction court explained, the
“deserves justice” remark was improper, but it “was an isolated comment and thus, it alone
would not mandate reversal.” Truehill, 211 So. 3d at 951. Competent counsel could
reasonably decide to refrain from objecting to this isolated statement. As for the
“nightmare” remark, the postconviction court correctly found that any objection would
have failed because the remark was an invited response. “A prosecutor’s comments are not

improper where they fall into the category of an ‘invited response’ by the preceding
argument of defense counsel concerning the same subject.” Walls v. State, 926 So. 2d 1156,
1166 (Fla. 2006). Here, defense counsel argued in closing that M.B.’s testimony should be
discounted because she was a “drama queen” who had received “an award for acting” in a
school play. (Doc. 11-2, Ex. 16, at 429). The prosecutor responded, “This is not some sort
of fantasy of which [M.B.] gets to have accolades for her starring role. This is a nightmare

from which she doesn’t get to wake up ever for the rest of her life.” (Id. at 440). Because
this remark was an invited response to defense counsel’s argument, counsel had no viable
basis to object.
For all these reasons, the postconviction court reasonably concluded that counsel
was not deficient for failing to object to the challenged statements. See United States v.

Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000) (noting that counsel “is not ineffective for
failing to raise claims reasonably considered to be without merit”).
D. Ground Three—Admission of Child Hearsay

Mr. Jennings contends that the trial court violated his rights to due process and a
fair trial by admitting “child hearsay” statements by M.B. (Doc. 1 at 21-22). The jury
watched a video of M.B.’s interview with the Sarasota County Child Protection Team,
during which she described Mr. Jennings’s sexual abuse. (Doc. 11-2, Ex. 16, at 216-38).
The jury also (1) saw M.B.’s text to her mother claiming that her “stepdad molested [her],”
and (2) heard that M.B. told her mother in person that Mr. Jennings had sexually abused
her on two occasions. (Id. at 288, 294).

These out-of-court statements were admitted under an exception to the hearsay rule
for statements made by a child victim. (Id., Ex. 13). “For a child hearsay statement to be
admissible, the statement must meet two specific reliability requirements: (1) the source of
the information through which the statement was reported must show trustworthiness; and
(2) the time, content, and circumstances of the statement must reflect that the statement
provides sufficient safeguards of reliability.” Fitzsimmons v. State, 309 So. 3d 261, 264

(Fla. 1st DCA 2020). After a hearing, the trial court issued a written order on the
prosecution’s request to admit M.B.’s hearsay statements. (Doc. 11-2, Ex. 13). As for the
statements made during the Child Protection Team interview, the court found that they
“possess[ed] the requisite indicia of reliability.” (Id. at 3). Specifically, “M.B.’s statements
were made in response to non-leading questions during a forensic interview conducted by

a trained professional,” the statements were “consistent with statements made to her mother
and during her deposition,” she “appear[ed] able to distinguish between reality and
fantasy,” and she “provided an age-appropriate description and used age-appropriate
terminology when describing the incidents.” (Id.) Moreover, although M.B. was “hesitant
to discuss the events,” her “statements [were] not vague, and there [was] no evidence of

coaching or improper influence.” (Id.)
The court likewise found that M.B.’s text messages and “verbal statements” to her
mother “possess[ed] the requisite indicia of reliability to meet the statutory requirements.”
(Id. at 4-5). The court noted that M.B. “spontaneously sent the statements via text message
in response to non-leading questions,” that the texts were “consistent with other statements
made to her mother, and statements made during her forensic interview and deposition,”

and that M.B. “lack[ed] a motive to fabricate the information provided in the text
message[s].” (Id.) As for the “verbal statements,” the court found “no evidence of coaching
or improper influence,” noting as well that “M.B. made her statements in response to non-
leading questions, her statements were not vague, and she described the incidents in an
age-appropriate manner.” (Id. at 5).
Mr. Jennings now contends that the admission of these hearsay statements caused

“extreme unfairness and prejudice” and violated his “right to a fair trial.” (Doc. 1 at 22).
According to him, the “two-year delay in making [the] accusations rendered [M.B.’s]
statements inherently unreliable,” there were unidentified “discrepanc[ies]” between the
statements, and their “probative value . . . was certainly outweighed by the[ir] prejudicial
effect.” (Id.) Respondent asserts that this claim is unexhausted and procedurally defaulted.

(Doc. 11 at 15). The Court need not reach that issue because the claim fails on the merits.
See Dallas, 964 F.3d at 1307 (“[A] federal court may skip over the procedural default
analysis if a claim would fail on the merits in any event.”).
“[F]ederal courts will not generally review state trial courts’ evidentiary
determinations.” Taylor v. Sec’y, Fla. Dep’t of Corr., 760 F.3d 1284, 1295 (11th Cir. 2014).

“Indeed, in a habeas corpus action brought by a state prisoner, [the court’s] authority is
severely restricted in the review of state evidentiary rulings.” Id. “Habeas relief is
warranted only when the error so infused the trial with unfairness as to deny due process
of law.” Id. In other words, courts “will not grant federal habeas corpus relief based on an
evidentiary ruling unless the ruling affects the fundamental fairness of the trial.” Mills v.
Singletary, 161 F.3d 1273, 1289 (11th Cir. 1998).

The “category of infractions that violate ‘fundamental fairness’” is “very narrow[],”
and Mr. Jennings cannot show that the admission of M.B.’s hearsay statements crossed the
line. Dowling v. United States, 493 U.S. 342, 352 (1990). As noted above, the out-of-court
statements were admitted under the well-established hearsay exception for statements
made by a child victim. (Doc. 11-2, Ex. 13). The trial court held a hearing, reviewed the
challenged statements, and issued a detailed written order explaining why the statements

were sufficiently reliable to qualify for the hearsay exception. (Id.; see also id., Ex. 10).
That order rested on reasonable factual findings, and the court thoroughly considered the
factors governing the admission of child hearsay under Florida law. (Id., Ex. 13). Although
Mr. Jennings believes that the court erred in admitting the statements, he cannot show
“fundamental unfairness to deprive him of due process and a fair trial.”1 Moon v. Sec’y,

Fla. Dep’t of Corr., No. 8:16-cv-387-WFJ-SPF, 2020 WL 6946440, at *4-5 (M.D. Fla.
Nov. 25, 2020) (no habeas relief for admission of child hearsay where, “after a full hearing
on the state’s notice of intent to admit child hearsay statements and Petitioner’s motion in
limine, the trial court found C.H.’s statements . . . admissible as out-of-court statements
made by a child victim under 16”).

1 To the extent Mr. Jennings contends that the admission of M.B.’s hearsay statements violated the
Confrontation Clause, that argument fails. M.B. testified at trial and was subject to cross-examination.
“[I]ntroduction of out-of-court statements, even if unreliable, does not violate the confrontation clause
where the declarant testifies at trial subject to full and effective cross-examination.” Carson v. Collins, 993
F.2d 461, 464 (5th Cir. 1993); see also Johnson v. Bett, 349 F.3d 1030, 1037 (7th Cir. 2003) (“Even when
presumptively unreliable hearsay is admitted as substantive evidence, there is no violation so long as the
declarant testifies as a witness and is subject to cross-examination.”).
E. Ground Four—Introduction of Collateral-Act Evidence

Finally, Mr. Jennings maintains that the trial court violated the federal constitution
by allowing the prosecution to present evidence that he committed “a similar collateral act
of molestation” against C.B., the victim’s older sister. (Doc. 1 at 25). According to Mr.
Jennings, the collateral-act evidence “had absolutely no relevance to any issue in
controversy at [the] trial, nor did the evidence have even an arguable tendency to prove a
material fact.” (Id.)
Respondent correctly contends that Mr. Jennings failed to exhaust this claim. (Doc.

11 at 16). Although he challenged the admission of the collateral-act evidence on direct
appeal, Mr. Jennings failed to argue that this evidentiary ruling violated the federal
constitution. (Doc. 11-2, Ex. 29, at 36-40). Instead, he couched his argument entirely in
terms of state law. (Id.) He cited only state rules of evidence and state-court opinions,
focusing in particular on Florida caselaw concerning “admission of collateral crimes

evidence.” (Id. at 37). Thus, Mr. Jennings failed to “make the state court aware that the
claim[] [he] asserted present[ed] federal constitutional issues.” Jimenez, 481 F.3d at 1342.
Mr. Jennings cannot return to state court to present his unexhausted claim in a
second, untimely direct appeal. See Fla. R. App. P. 9.140(b)(3). As a result, this claim is
procedurally defaulted. See Smith, 256 F.3d at 1138. And because Mr. Jennings has not

shown that an exception applies to overcome the default, his claim is barred from federal
habeas review.
IV. Conclusion
Accordingly, the Court ORDERS:
1. Mr. Jennings’s petition (Doc. 1) is DENIED.
2. The CLERK 1s directed to enter judgment against Mr. Jennings and to CLOSE this
case.
3. Mr. Jennings is not entitled to a certificate of appealability. A prisoner seeking a
writ of habeas corpus has no absolute entitlement to appeal a district court’s denial
of his petition. 28 U.S.C. § 2253(c)(1). “A certificate of appealability may issue . .

. only if the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). To obtain a certificate of appealability, Mr. Jennings
must show that reasonable jurists would find debatable both the merits of the
underlying claims and the procedural issues he seeks to raise. See Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Mr. Jennings has not made the requisite
showing. Because Mr. Jennings is not entitled to a certificate of appealability, he is
not entitled to appeal in forma pauperis.
DONE AND ORDERED in Tampa, Florida, on September 5, 2024.
lieth,
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10642898. Public record. Not legal advice.