Ivery v. Secretary, Department of Corrections (Pinellas)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

RODERICK JAMES IVERY,

Petitioner,

v. Case No. 8:23-cv-2300-WFJ-TGW

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

/

ORDER

Roderick James Ivery, a Florida prisoner, timely filed a pro se petition for writ of

habeas corpus under 28 U.S.C. § 2254. (Doc. 1; Doc. 1-1). Respondent filed a response

opposing the petition. (Doc. 7). Although afforded the opportunity, Mr. Ivery did not file a

reply. After careful review, the petition is DENIED.

I. Background

On August 25, 2015, Mr. Ivery raped the daughter of his “on again, off again”

girlfriend. (Doc. 7-2, Ex. 6, at 474). At the time, the victim was 18 years old, and Mr. Ivery

was 43. (Id. at 260, 463). The rape was the culmination of several years of escalating sexual

advances by Mr. Ivery toward the victim. When the victim was “15 or 16” years old, Mr.

Ivery picked her up from a job interview at a McDonald’s. (Id. at 295-96). He was supposed

to take her to school. (Id. at 296). Instead, he stopped at a park, asked her if she “had a

boyfriend” and “liked kissing,” and then “grabbed [her] face and tongue kissed [her].” (Id.

at 297).

Sometime later, the victim was alone in her mother’s apartment, sitting on the couch

in the living room and wearing only a sports bra and shorts. (Id. at 299-300). Mr. Ivery

arrived and told her to “put on clothes” because she “was turning him on.” (Id. at 299).

When she “got up to go put on a shirt,” Mr. Ivery slapped her buttocks. (Id. at 299-300).

He then grabbed her, “put [her] in between his legs,” and kissed her. (Id. at 300-01). He

told her that “he only had a few more years,” then left the apartment. (Id. at 301).

The final incident took place approximately one year before the rape, when the

victim was 17 years old. (Id. at 301). She was taking a shower in her mother’s apartment,

which had only one bathroom. (Id. at 301-02, 323). Mr. Ivery knocked on the door and

asked to use the toilet. (Id. at 302). She said, “Okay.” (Id.) After flushing the toilet, Mr.

Ivery pulled back the shower curtain, put two fingers in his mouth, and then inserted them

into her vagina. (Id.) He put his fingers back in his mouth and “said [that] he couldn’t wait

to taste [her].” (Id. at 302-03).

On the evening before the rape, Mr. Ivery had sex with the victim’s mother at her

apartment. (Id. at 239-41). The two had sex again the next morning. (Id. at 241). The

victim’s mother then left for work. (Id. at 241-42). By that time, the victim had also left

the apartment to drive her brother to a doctor’s appointment. (Id. at 242, 275-76). Later

that day, Mr. Ivery texted the victim and told her to “come on home” because “he was

cooking breakfast.” (Id. at 277). She responded, “Eww. I don’t care. Hurry up and leave

my house.” (Id. at 501). Mr. Ivery texted back, “I’m not going to do anything to you.

Promise you that. Your moms wore me out last night.” (Id. at 501-02). He then asked, “Can

you come home?” (Id. at 502). The victim said, “No. I’ll be there when you leave. I don’t

know how many times I have to tell you I’m engaged. Don’t text me.” (Id. at 503).

The victim returned to the apartment, “went straight to [her] room,” and “closed

[the] door.” (Id. at 279). Mr. Ivery knocked on the door and asked whether she “was mad

at him.” (Id.) The victim did not respond. (Id.) Two or three minutes later, Mr. Ivery

knocked on the door again. (Id. at 338). This time, she told him to “leave [her] alone.” (Id.)

Sometime later, Mr. Ivery walked into the room without knocking. (Id. at 279, 339). He sat

on her bed; she “asked him to move.” (Id. at 284). He “sniff[ed]” her and tried to kiss her

arm, prompting her to “back up toward the wall.” (Id. at 285). He then pinned her down on

the bed with his “body weight” and sniffed her “vagina area.” (Id. at 285-86). At this point,

he asked whether she wanted a “massage.” (Id. at 339). She “shook [her] head no.” (Id.)

He began to massage her shoulders, and she unsuccessfully tried to “nudge” him off. (Id.

at 288). As she “lay[ ] there crying,” he licked her ears and kissed her neck. (Id. at 288,

290).

Mr. Ivery got up and began to massage the victim’s neck and buttocks. (Id. at 288-

89). He eventually lifted her dress, pushed aside her underwear, and inserted his penis into

her vagina. (Id. at 289). He noticed that she was crying and said, “So you really don’t want

this?” (Id.) Mr. Ivery asked whether “he could finish,” then left the room. (Id. at 291). The

victim called her “best friend” and said that her “mother’s boyfriend had just raped [her].”

(Id. at 291-92). As she left the apartment, she saw Mr. Ivery “rubbing” his penis “in the

hallway.” (Id. at 292). She went downstairs to her car and called 911. (Id.) When police

arrived, she was “crying” and “shaking.” (Id. at 363).

Later that day, law enforcement interviewed Mr. Ivery. (Id. at 463). He said that

nobody had told him why he was being questioned. (Id. at 492). He believed, however, that

“[t]his got to do with some kind of sex crime because that’s the only reason you get

questioned like this.” (Id. at 493). Mr. Ivery denied any sexual contact with the victim and

claimed that his DNA would not be found on her body. (Id. at 496-98). Subsequent analysis

revealed his DNA on the victim’s neck and ears, as well as the “crotch area” of her

underwear. (Id. at 622-24, 627, 634-37).

Mr. Ivery was arrested and charged with one count of sexual battery for the August

25, 2015 rape. (Id., Ex. 2). Following a three-day trial, the jury found him guilty as charged.

(Id., Ex. 6, at 784). He was sentenced to 40 years in prison as a violent career criminal.1

(Id., Ex. 8). After an unsuccessful direct appeal, Mr. Ivery moved for postconviction relief

under Florida Rule of Criminal Procedure 3.850. (Id., Exs. 14, 16). The postconviction

court rejected his claims, and the appellate court affirmed the denial of relief. (Id., Exs. 18,

20, 24). This federal habeas petition followed. (Doc. 1; Doc. 1-1).

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

1 Mr. Ivery had prior convictions for burglary, robbery, and felon in possession of a firearm. (Doc. 7-2, Ex.

7, at 7).

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 appellate court affirmed Mr. Ivery’s conviction and sentence, 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. Ivery 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. Ivery 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. Ivery 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.

III. Discussion

A. Ground One—Introduction of Collateral-Act Evidence

Mr. Ivery contends that the trial court violated his federal right to due process by

admitting evidence of “uncharged collateral crimes.” (Doc. 1 at 1; see also Doc. 1-1 at 2-

5). The charged conduct in this case was limited to the rape that took place on August 25,

2015. (Doc. 7-2, Ex. 2). But the jury also heard about Mr. Ivery’s escalating sexual

advances toward the victim in the years leading up to the rape. Before trial, the prosecution

had filed a notice of its intent to introduce this collateral-act evidence. (Id., Ex. 3). The

court held a hearing and took testimony from the victim. (Id., Ex. 5). It ultimately found

the evidence admissible under Fla. Stat. § 90.404(2)(c)1, which provides that “[i]n a

criminal case in which the defendant is charged with a sexual offense, evidence of the

defendant’s commission of other crimes, wrongs, or acts involving a sexual offense is

admissible and may be considered for its bearing on any matter to which it is relevant.”

(Id. at 38-39). The court explained that the collateral-act evidence showed Mr. Ivery’s

“grooming” of the victim and provided “context” for the rape. (Id. at 38). Specifically, the

evidence “rebut[ted] the idea” that the rape was “a onetime thing, never any problems

before, and then lo and behold he just forces sex on her.” (Id. at 39).

Mr. Ivery now contends that the admission of collateral-act evidence violated his

right to due process because (1) the victim “was not an inherently credible witness,” (2)

her description of the incidents was “nothing more than an attempt to cast [him] in a bad

light,” and (3) the prior bad acts were “unsubstantiated.” (Doc. 1-1 at 2-5).

Respondent maintains that this claim is procedurally defaulted. (Doc. 7 at 14). The

Court need not decide that issue because, even assuming Mr. Ivery properly exhausted his

state-court remedies, he cannot show that the rejection of Ground One was “contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); see also Cook v. McNeil,

266 F. App’x 843, 846 (11th Cir. 2008) (affirming denial of habeas petition because,

“[e]ven if [petitioner] exhausted his due process claim,” he could not “establish either that

the state courts applied a standard contrary to federal law or that they applied that precedent

in an unreasonable manner”); Acosta v. Artuz, 575 F.3d 177, 188-89 (2d Cir. 2009) (“Even

if we were to assume that [petitioner] adequately exhausted state remedies on the precise

challenge to the admission of his confession that he now raises in his habeas petition, we

would agree with the district court that no relief is warranted because [he] has not

demonstrated that the state court’s rejection of his claim on the merits was an objectively

unreasonable application of clearly established Supreme Court precedent.”).

“‘[C]learly established Federal law’ for purposes of § 2254(d)(1) includes only the

holdings, as opposed to the dicta, of [the Supreme] Court’s decisions.” White v. Woodall,

572 U.S. 415, 419 (2014). The Supreme Court has repeatedly cautioned lower courts

against framing its decisions at “a high level of generality.” Nevada v. Jackson, 569 U.S.

505, 512 (2013); see also Brown v. Davenport, 596 U.S. 118, 136 (2022) (noting that

“holdings that speak only at a high level of generality” “cannot supply a ground for relief”

under AEDPA). Accordingly, “it is not ‘an unreasonable application of’ ‘clearly

established Federal law’ for a state court to decline to apply a specific legal rule that has

not been squarely established by [the Supreme] Court.” Knowles v. Mirzayance, 556 U.S.

111, 122 (2009); see also Reese v. Sec’y, Fla. Dep’t of Corr., 675 F.3d 1277, 1288 (11th

Cir. 2012) (“The Supreme Court has reiterated, time and again, that, in the absence of a

clear answer—that is, a holding by the Supreme Court—about an issue of federal law, we

cannot say that a decision of a state court about that unsettled issue was an unreasonable

application of clearly established federal law.”).

The Supreme Court has never “squarely established” any constitutional limits on

the admission of collateral-act evidence. Knowles, 556 U.S. at 122. To the contrary, the

Court expressly declined to determine “whether a state law would violate the Due Process

Clause if it permitted the use of ‘prior crimes’ evidence to show propensity to commit a

charged crime.” Estelle v. McGuire, 502 U.S. 62, 75 n.5 (1991). Thus, as several lower

courts have recognized, “[t]here is no clearly established Supreme Court precedent which

holds that a state violates due process by permitting . . . other bad acts evidence.” Bugh v.

Mitchell, 329 F.3d 496, 512 (6th Cir. 2003); see also Coningford v. Rhode Island, 640 F.3d

478, 484 (1st Cir. 2011) (finding no “clearly established Supreme Court case law speaking

directly to the admission of prior bad acts evidence”); Flores v. Adams, 319 F. App’x 514

(9th Cir. 2009) (“[T]he admission of propensity evidence did not entitle [ ] petitioner to

habeas relief because there is no clearly established Supreme Court precedent holding that

the admission of such evidence is a violation of due process.”). The absence of on-point

precedent from the Supreme Court is fatal to Mr. Ivery’s claim. See Loggins v. Thomas,

654 F.3d 1204, 1222 (11th Cir. 2011) (“Because implications are not actual holdings, the

implications of Supreme Court decisions cannot clearly establish federal law for §

2254(d)(1) purposes any more than dicta can.”).

Even apart from the absence of clearly established federal law, Mr. Ivery cannot

show that the admission of collateral-act evidence “failed the due process test of

fundamental fairness.” Dowling v. United States, 493 U.S. 342, 352 (1990). The “category

of infractions that violate ‘fundamental fairness’” is “very narrow[ ],” and Mr. Ivery cannot

show that the trial court unreasonably applied this general principle by admitting collateral-

act evidence in his case. Id. In a sexual-battery prosecution, collateral-act evidence “may

be considered for its bearing on any matter to which it is relevant.” Fla. Stat. §

90.404(2)(c)1. Here, the collateral-act evidence showed that in the years leading up to the

rape, Mr. Ivery made a series of escalating sexual advances toward the victim. This course

of conduct made it more likely that he engaged in sexual intercourse with the victim on

August 25, 2015—one of the elements of the charged offense.2 In these circumstances, a

reasonable jurist could conclude that the introduction of collateral-act evidence was not “so

extremely unfair that its admission violate[d] ‘fundamental conceptions of justice.’”

Dowling, 493 U.S. at 352 (citation omitted); see also Lutz v. Palmer, No. 3:11-cv-334-

LAC-EMT, 2012 WL 4660685, at *16 (N.D. Fla. Sept. 10, 2012) (petitioner “not entitled

to relief” because he “failed to identify a Supreme Court case holding that the admission

2 As noted above, Mr. Ivery denied any sexual contact with the victim.

of similar fact or collateral crime evidence in circumstances such as the instant case was

unconstitutional”), adopted by 2012 WL 4660981 (N.D. Fla. Oct. 3, 2012).

B. Ground Two—Exclusion of Evidence Concerning Victim’s “Bias”

Mr. Ivery argues that the trial court violated his constitutional right to present a “full

and fair defense” by excluding evidence of the victim’s “bias” against him. (Doc. 1-1 at 7-

5-8). Specifically, the victim told law enforcement that at some point before the rape, she

had “texted Mr. Ivery to come over to set him up so [her] boyfriend could beat him up.”

(Doc. 7-2, Ex. 6, at 563). The court excluded this evidence, reasoning that (1) the victim

“already [had] an acknowledged bias or interest against” Mr. Ivery,3 and (2) any testimony

about the “set up” would serve only to “further tar” the victim. (Id. at 573).

Respondent correctly contends that Ground Two is unexhausted and procedurally

defaulted. (Doc. 7 at 17-19). 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). On direct appeal, Mr. Ivery claimed

that the trial court “abused its discretion” under Florida law by excluding evidence of the

victim’s “attempt to have [him] beaten up.” (Doc. 7-2, Ex. 11, at 29). But he did not argue

3 The victim testified that she disliked Mr. Ivery for several reasons beyond his sexual abuse, including that

he was unfaithful to her mother and did not financially support her family. (Doc. 7-2, Ex. 6, at 348-49).

that this evidentiary ruling violated any provision of the federal constitution. (Id. at 29-32).

Accordingly, Mr. Ivery failed “to afford the state court[ ] a meaningful opportunity to

consider” his federal constitutional claim. McNair v. Campbell, 416 F.3d 1291, 1302 (11th

Cir. 2005).

Mr. Ivery did raise the federal component of his claim in his Rule 3.850 motion,

arguing that the trial court violated his constitutional rights by excluding evidence of the

“set up.” (Doc. 7-2, Ex. 16, at 34). But the postconviction court rejected this claim as

procedurally barred. It explained that the evidentiary issue “should have been raised on

direct appeal and [was] not cognizable in [a] motion[ ] for postconviction relief.” (Id., Ex.

18, at 2, 4). Because “the procedural requirements of Florida’s Rule 3.850 constitute

independent and adequate state grounds”—and because Mr. Ivery did not properly exhaust

his claim on direct appeal—Ground Two is procedurally defaulted. LeCroy v. Sec’y, Fla.

Dep’t Corr., 421 F.3d 1237, 1260 n.25 (11th Cir. 2005).

To overcome the default, Mr. Ivery must show either cause and prejudice or a

miscarriage of justice. See Mincey v. Head, 206 F.3d 1106, 1135 (11th Cir. 2000) (“It is

well-settled that federal habeas courts may not consider claims that have been defaulted in

state court . . . unless the petitioner can show ‘cause’ for the default and resulting

‘prejudice,’ or ‘a fundamental miscarriage of justice.’”). Mr. Ivery fails to make the

required showing. Accordingly, Ground Two is barred from federal habeas review.

C. Ground Three—Sufficiency of the Evidence

Mr. Ivery contends that the trial court violated his due process rights by denying his

motion for judgment of acquittal. (Doc. 1 at 8). According to him, the prosecution failed to

prove beyond a reasonable doubt that the victim “did not want to have [a] sexual

encounter.” (Id.) The trial court rejected this argument, and the appellate court affirmed in

an unexplained decision. (Doc. 7-2, Ex. 6, at 681; Doc. 7-2, Ex. 14).

Mr. Ivery’s sufficiency challenge is meritless. Under Jackson v. Virginia, 443 U.S.

307, 319 (1979), a court reviewing a challenge to the sufficiency of the evidence must

evaluate whether, “after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” The Jackson standard must be applied “with explicit reference to the

substantive elements of the criminal offense as defined by state law.” Id. at 324 n.16. Under

Jackson, the prosecution does not have “an affirmative duty to rule out every hypothesis

except that of guilt beyond a reasonable doubt.” Id. at 326. If the record contains facts

supporting conflicting inferences, the jury is presumed to have “resolved any such conflicts

in favor of the prosecution.” Id.

Consistent with AEDPA, “a federal court may not overturn a state court decision

rejecting a sufficiency of the evidence challenge simply because the federal court disagrees

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

‘objectively unreasonable.’” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (quoting Renico v.

Lett, 559 U.S. 766, 773 (2010)).

Mr. Ivery fails to show that the rejection of his sufficiency challenge was

“objectively unreasonable.” Id. As noted above, Mr. Ivery was charged with sexual battery,

which requires proof that sexual contact “occurred without consent.” Statler v. State, 349

So. 3d 873, 880 (Fla. 2022). “Consent” means “intelligent, knowing, and voluntary consent

and does not include coerced submission.” Fla. Stat. § 794.011(1)(a). Moreover, consent

“shall not be deemed or construed to mean the failure by the alleged victim to offer physical

resistance to the offender.” Id. Consent “is a relative term to be viewed under the

circumstances of each case,” and it “is essentially a question for the jury.” Hufham v. State,

400 So. 2d 133, 135 (Fla. 5th DCA 1981).

Here, a rational jury could have found beyond a reasonable doubt that Mr. Ivery

“did not have a willing partner.” Statler, 349 So. 3d at 880. At the time of the incident, Mr.

Ivery was engaged in a sexual relationship with the victim’s mother. (Doc. 7-2, Ex. 6, at

239-41). He was 43 years old; the victim was 18. (Id. at 260, 463). The morning of the

incident, Mr. Ivery urged the victim via text message to “come on home” because “he was

cooking breakfast.” (Id. at 277). She responded, “Eww. I don’t care. Hurry up and leave

my house.” (Id. at 501). Mr. Ivery texted back, “I’m not going to do anything to you.

Promise you that. Your moms wore me out last night.” (Id. at 501-02). He then asked, “Can

you come home?” (Id. at 502). The victim said, “No. I’ll be there when you leave. I don’t

know how many times I have to tell you I’m engaged. Don’t text me.” (Id. at 503).

When the victim returned to the apartment, she “went straight to [her] room” and

“closed [the] door.” (Id. at 279). Mr. Ivery knocked on the door twice, and the victim told

him to “leave [her] alone.” (Id. at 338). He ignored this instruction, entered the room

without knocking, and sat on the bed. (Id. at 279, 284, 339). She rebuffed his attempt to

kiss her by “back[ing] up toward the wall.” (Id. at 285). He then pinned her down and asked

whether she wanted a “massage.” (Id. at 339). She “shook [her] head no” and tried to

“nudge” him off when he began to massage her shoulders. (Id. at 288, 339). She started to

cry; he got up, lifted her dress, and inserted his penis into her vagina. (Id. at 288-89). At

trial, the victim testified that she did not “consent to” this sexual contact, and that her lack

of consent was “obvious.” (Id. at 291).

Viewed in the light most favorable to the prosecution, this evidence was collectively

sufficient to show that the victim “was not a willing partner.” Statler, 349 So. 3d at 880;

see also Hubbard v. Sec’y, DOC, No. 2:08-cv-215-CEH-DNF, 2011 WL 554078, at *14

(M.D. Fla. Feb. 8, 2011) (rejecting sufficiency challenge to sexual-battery conviction

where “[t]he victim testified that she did not consent to have sex with the [p]etitioner”).

Accordingly, the state court reasonably rejected Mr. Ivery’s sufficiency challenge.

D. Ground Four—Failure to Properly Advise Mr. Ivery about Testifying at

Trial

Finally, Mr. Ivery contends that trial counsel was ineffective for advising him not

to testify at trial “unless [he was] willing to concede that sex occurred.” (Doc. 1 at 10).

According to Mr. Ivery, he consistently told counsel that “he was innocent and [the victim]

was . . . trying to set him up,” that he “[n]ever” did “anything sexual toward [her] whether

she was an adult or while she was underage,” and that she “manually transferred his DNA

onto her without his knowledge.” (Doc. 1-1 at 11). Mr. Ivery alleges that during trial he

told counsel he “wanted to testify.” (Id. at 12). In response, counsel allegedly said that Mr.

Ivery “needed . . . to . . . testify the two had sex but that it was consensual.” (Id.) According

to Mr. Ivery, counsel “specifically told him not to testify that [the victim] was trying to set

him up.” (Id.) Mr. Ivery ultimately chose not to testify in his defense. (Doc. 7-2, Ex. 6, at

688-89). He now contends that counsel’s advice was “patently unreasonable” because it

would have required him to “lie under oath only to tell a story readily impeachable by his

prior interview with police detectives.” (Doc. 1-1 at 12-13).

Mr. Ivery correctly concedes that this claim is procedurally defaulted because he

failed to raise it in state court. (Id. at 14-17; Doc. 1 at 11). This means that he cannot obtain

relief “unless [he] can demonstrate cause for the default and actual prejudice, or that he is

actually innocent.” Gore v. Crews, 720 F.3d 811, 816 (11th Cir. 2013). Mr. Ivery seeks to

excuse the default under Martinez v. Ryan, 566 U.S. 1 (2012). Martinez held that a

petitioner may establish cause for the default of a claim of ineffective assistance of trial

counsel where (1) “in the initial-review collateral proceeding, there was no counsel or

counsel in that proceeding was ineffective,” and (2) the defaulted claim is a “substantial

one,” meaning that it “has some merit.” Martinez, 566 U.S. at 14, 17. A claim is

“insubstantial” if it is “wholly without factual support.” Id. at 16.

Martinez does not excuse the default because Mr. Ivery’s ineffective-assistance

claim is not “substantial.” Id. at 14. This conclusion follows from the Supreme Court’s

decision in Shinn v. Ramirez, which significantly restricted Martinez’s scope. 596 U.S. 366

(2022). Shinn held that, unless a petitioner satisfies § 2254(e)(2), a federal court cannot

consider evidence outside the state-court record “to assess cause and prejudice under

Martinez.” Id. at 389. Section 2254(e)(2), in turn, imposes “stringent requirements” on a

petitioner seeking to expand the state-court record. Id. It states that if a petitioner “failed to

develop the factual basis of a claim in State court proceedings,” a federal court cannot

consider new evidence unless the claim relies on either (1) “a new rule of constitutional

law” or (2) “a factual predicate that could not have been previously discovered through the

exercise of due diligence.” 28 U.S.C. § 2254(e)(2). Even if a petitioner satisfies either of

these exceptions, he still must show that further factfinding would establish, “by clear and

convincing evidence,” that “no reasonable factfinder” would have convicted him of the

charged offense. Id. § 2254(e)(2)(B).

Shinn forecloses relief on Mr. Ivery’s ineffective-assistance claim. The state-court

record contains no evidence of the advice counsel allegedly gave Mr. Ivery about testifying

at trial. (Doc. 7-2). Thus, his claim necessarily relies on evidence that was not presented in

state court. But § 2254(e)(2) bars this Court from considering any new evidence. As noted

above, § 2254(e)(2) applies to petitioners who “failed to develop the factual basis of [their]

claim in State court proceedings.” 28 U.S.C. § 2254(e)(2). “[A] failure to develop the

factual basis of a claim is not established unless there is lack of diligence, or some greater

fault, attributable to the prisoner or the prisoner’s counsel.” Williams v. Taylor, 529 U.S.

420, 432 (2000). “Diligence,” as used in § 2254(e)(2), “depends upon whether the prisoner

made a reasonable attempt, in light of the information available at the time, to investigate

and pursue claims in state court.” Id. at 435.

Mr. Ivery failed to diligently pursue his ineffective-assistance claim in state court.

He raised several claims in his Rule 3.850 motion. But he did not bring the claim he seeks

to pursue now—namely, that counsel gave him bad advice about testifying at trial. (Doc.

7-2, Ex. 16). Indeed, at no point in the Rule 3.850 proceedings did Mr. Ivery allege that he

had spoken to counsel about testifying in his defense. Because Mr. Ivery did not make “a

reasonable attempt to investigate and pursue his ineffective assistance of counsel claim in

state court,” that claim is subject to § 2254(e)(2). McNair, 416 F.3d at 1298; see also Will

v. Sec’y, Dep’t of Corr., 278 F. App’x 902, 907 (11th Cir. 2008) (petitioner “did not

sufficiently develop the factual basis of [his] claim in state court” under § 2254(e)(2)

because he never “raise[d] before the state habeas court his claim that his trial counsel was

ineffective for failing to move to suppress his confession on the basis that he requested, but

was refused, counsel during an unrecorded break in his interrogation”).

Mr. Ivery cannot satisfy § 2254(e)(2)’s stringent requirements. His ineffective-

assistance claim does not rely on “a new rule of constitutional law,” and the “factual

predicate” for that claim—counsel’s allegedly deficient advice about testifying at trial—

was known to him during the Rule 3.850 proceedings. 28 U.S.C. § 2254(e)(2)(A).

Moreover, Mr. Ivery cannot show that further factfinding on his claim would establish, “by

clear and convincing evidence,” that “no reasonable factfinder” would have convicted him

of sexual battery. Id. § 2254(e)(2)(B).

Thus, Mr. Ivery cannot prevail unless he shows that his ineffective-assistance claim

is “substantial” “considering only the state-court record.” Williams v. Superintendent

Mahanoy SCI, 45 F.4th 713, 724 (3d Cir. 2022); see also Rogers v. Mays, 69 F.4th 381,

397 (6th Cir. 2023) (noting that the state-court record contained “all the evidence we can

consider” under Martinez because petitioner “ha[d] not satisfied § 2254(e)(2)”); Apolonio

v. Sec’y, Dep’t of Corr., No. 21-12297, 2022 WL 17411282, at *5 (11th Cir. Dec. 5, 2022)

(“We cannot consider [petitioner’s] new factual allegation as evidence supporting [his]

ineffective-assistance claim because [he] has not satisfied the requirements for a federal

evidentiary hearing under 28 U.S.C. § 2254(e)(2).”); Grace v. Sec’y, No. 8:21-cv-621-

MSS-AEP, 2024 WL 492991, at *11 (M.D. Fla. Feb. 8, 2024) (holding that, because

petitioner failed to “meet his heavy burden under [§] 2254(e)(2),” he “must demonstrate

deficient performance and prejudice . . . based on the state-court record”). Mr. Ivery cannot

make this showing because his claim finds no support in the state-court record. Therefore,

Martinez does not excuse the default, and Ground Four is barred from federal habeas

review.4

IV. Conclusion

Accordingly, the Court ORDERS:

1. Mr. Ivery’s petition (Doc. 1) is DENIED.

2. The CLERK is directed to enter judgment against Mr. Ivery and to CLOSE this

case.

3. Mr. Ivery 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. Ivery

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. Ivery has not made the requisite showing.

Because Mr. Ivery is not entitled to a certificate of appealability, he is not entitled

to appeal in forma pauperis.

4 Mr. Ivery does not contend that he qualifies for the actual-innocence exception.

DONE AND ORDERED in Tampa, Florida, on January 7, 2025.

WILLIAM F.

UNITED STATES DISTRICT JUDGE

21