# Bragg v. Secretary, Department of Corrections (Lee County)

> District Court, M.D. Florida · February 18, 2025

URL: https://www.frixlaw.com/law-library/cases/10801627

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** February 18, 2025
- **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/10801627

## How later opinions describe it (automated extraction)

- holding that claims are waived when an appellant “merely refer[s] to arguments presented during the postconviction proceedings without further elucidation”
- affirming denial of motion for postconviction relief for failure to file motion for new trial where there was no “strong likelihood a new trial would have been ordered”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

CHRISTOPHER BRAGG,

Petitioner,

v. Case No.: 2:24-cv-540-SPC-KCD

SECRETARY, DEPARTMENT OF
CORRECTIONS,

Respondent.

OPINION AND ORDER
Before the Court is Christopher Bragg’s Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2254 (Doc. 1). Bragg challenges his conviction and
30-year prison sentence for sexual battery.
Background
On June 6, 2014, the State of Florida charged Bragg with sexual battery.
The Office of the Public Defender represented Bragg—Penelope Michalakis
initially handled the case, and Jason Aruszka and Nicole DeVito litigated the
trial.
The victim, J.H., testified that in October 2013, she lived on a sailboat
with her boyfriend and fiancé Michael Richards. On October 12, 2013, J.H.
walked from the boat towards a nearby convenience store. Bragg pulled into
the store’s parking lot on a motorcycle and struck up a conversation with J.H.
Bragg told J.H. she looked familiar, and J.H. listed people they might both
know. One was Amy Richards, a friend J.H. had not seen in a while and was

worried about. Bragg said he knew Richards and had just seen her across the
street, and he offered to take J.H. to her. J.H. got on the motorcycle, and they
drove around the area looking for Richards. (Doc. 10-2 at 197-204).
Bragg suddenly pulled off the road, and J.H. jumped off the bike and

started walking away. Bragg grabbed J.H.’s arm, twisted it behind her back,
and grabbed her hair with his other hand. J.H. yelled out, Bragg put his hand
over her mouth, and she bit him. Bragg called J.H. a “stupid little whore” and
shoved her down. He pinned her to the ground, pulled her pants down, and

forcibly penetrated her vagina with his penis. J.H. initially struggled, but
then she tried to block it out and imagine she was somewhere else. Bragg
eventually stopped, threatened J.H., and drove away on his motorcycle. J.H.
found her way home, changed into pajamas, and got in bed. (Id. at 204-08).

J.H. had an asthma attack later that night and went to the hospital.
After being treated for her breathing issues, J.H. asked to see a female nurse
alone and told her what had happened. The nurse called law enforcement,
and J.H. gave a statement to Sergeant Andrea Fisher. She then went to the

Abuse and Counseling Treatment Center (ACT), where she received a head-to-
toe physical examination. After leaving ACT, J.H. took Detective Daniel Cote
to the scene of the assault. She then went to the police station and described
her attacker to a sketch artist. In the courtroom, J.H. identified Bragg as the
man who raped her. (Id. at 209-14).

Nurse Katherine Paradiso testified that she examined J.H. at ACT.
J.H. was crying and very frightened, and Paradiso found injuries from J.H.’s
neck to her feet. The jury saw pictures of the injuries. The bruises appeared
fresh to Paradiso, and J.H. reported they were not there before the sexual

assault. Paradiso also performed a sexual battery exam and took buccal and
vaginal swabs. (Id. at 285-96). A crime lab analyst testified that Bragg’s
DNA matched the DNA of semen found on the vaginal swabs. (Id. at 341).
Bragg took the witness stand and acknowledged fourteen prior felony

convictions. He testified he was visiting Fort Myers from North Carolina in
October 2013. Bragg claimed that he approached J.H. because he hoped she
was a prostitute, and that they had consensual sex. (Id. at 274-84).
The jury found Bragg guilty of sexual battery, (id. at 424), and the court

sentenced him to a 30-year prison term, (id. at 452). A public defender found
no meritorious arguments to raise on appeal and filed an Anders1 brief. (Id.
at 462-78). Florida’s Second District Court of Appeal (2nd DCA) affirmed
without a written opinion. (Id. at 482).

Bragg filed a state postconviction motion under Florida Rule of Criminal

1 Anders v. California, 386 U.S. 738 (1967).
Procedure 3.850, raising 11 grounds. (Id. at 484-515). The postconviction
court summarily denied six grounds and one sub-ground and set an evidentiary

hearing for the rest. (Id. at 804-17, 941-42). The court denied the remaining
grounds after the hearing. (Id. at 1176-87). Florida’s Sixth District Court of
Appeals (6th DCA) affirmed without a written opinion. (Id. at 1251). Bragg
filed a motion to correct illegal sentence under Florida Rule of Civil Procedure

3.800(a). (Id. at 1255-69). The postconviction court denied the motion but
corrected a discrepancy between the oral pronouncement of the sentence and
the written judgment. (Id. at 1292-94). Bragg then timely filed his federal
habeas petition. (Doc. 1).

Applicable Habeas Law
A. AEPDA
The Antiterrorism Effective Death Penalty Act (AEDPA) governs a state
prisoner’s petition for habeas corpus relief. 28 U.S.C. § 2254. Relief may

only be granted on a claim adjudicated on the merits in state court if the
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.
28 U.S.C. § 2254(d). This standard is both mandatory and difficult to meet.
White v. Woodall, 134 S. Ct. 1697, 1702 (2014). A state court’s violation of

state law is not enough to show that a petitioner is in custody in violation of
the “Constitution or laws or treaties of the United States.” 28 U.S.C. §
2254(a); Wilson v. Corcoran, 562 U.S. 1, 16 (2010).
“Clearly established federal law” consists of the governing legal

principles set forth in the decisions of the United States Supreme Court when
the state court issued its decision. White, 134 S. Ct. at 1702; Casey v.
Musladin, 549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412
(2000)). Habeas relief is appropriate only if the state court decision was

“contrary to, or an unreasonable application of,” that federal law. 28 U.S.C. §
2254(d)(1). A decision is “contrary to” clearly established federal law if the
state court either (1) applied a rule that contradicts the governing law set forth
by Supreme Court case law or (2) reached a different result from the Supreme

Court when faced with materially indistinguishable facts. Ward v. Hall, 592
F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).
A state court decision involves an “unreasonable application” of Supreme
Court precedent if the state court correctly identifies the governing legal

principle, but applies it to the facts of the petitioner’s case in an objectively
unreasonable manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v.
Moore, 234 F.3d 526, 531 (11th Cir. 2000), or “if the state court either
unreasonably extends a legal principle from [Supreme Court] precedent to a
new context where it should not apply or unreasonably refuses to extend that

principle to a new context where it should apply.” Bottoson, 234 F.3d at 531
(quoting Williams, 529 U.S. at 406).
When reviewing a claim under 28 U.S.C. § 2254(d), a federal court must
remember that any “determination of a factual issue made by a State court

shall be presumed to be correct[,]” and the petitioner bears “the burden of
rebutting the presumption of correctness by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1); Burt v. Titlow, 134 S. Ct. 10, 15 (2013) (“[A] state-court
factual determination is not unreasonable merely because the federal habeas

court would have reached a different conclusion in the first instance.”). “A
state court’s determination that a claim lacks merit precludes federal habeas
relief so long as fair-minded jurists could disagree on the correctness of the
state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011).

“[T]his standard is difficult to meet because it was meant to be.” Sexton v.
Beaudreaux, 138 S. Ct. 2555, 2558 (2018).
B. Exhaustion and Procedural Default
AEDPA precludes federal courts, absent exceptional circumstances, from

granting habeas relief unless a petitioner has exhausted all means of relief
available under state law. Failure to exhaust occurs “when a petitioner has
not ‘fairly presented’ every issue raised in his federal petition to the state’s
highest court, either on direct appeal or on collateral review.” Pope v. Sec’y for
Dep’t. of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012) (quoting Mason v. Allen,

605 F.3d 1114, 1119 (11th Cir. 2010)). The petitioner must apprise the state
court of the federal constitutional issue, not just the underlying facts of the
claim or a similar state law claim. Snowden v. Singletary, 135 F.3d 732, 735
(11th Cir. 1998).

Procedural defaults generally arise in two ways:
(1) where the state court correctly applies a procedural default
principle of state law to arrive at the conclusion that the
petitioner’s federal claims are barred; or (2) where the
petitioner never raised the claim in state court, and it is obvious
that the state court would hold it to be procedurally barred if it
were raised now.

Cortes v. Gladish, 216 F. App’x 897, 899 (11th Cir. 2007). A federal habeas
court may consider a procedurally barred claim if (1) petitioner shows
“adequate cause and actual prejudice,” or (2) if “the failure to consider the claim
would result in a fundamental miscarriage of justice.” Id. (citing Coleman v.
Thompson, 501 U.S. 722, 749-50 (1991)).
C. Ineffective Assistance of Counsel
In Strickland v. Washington, the Supreme Court established a two-part
test for determining whether a convicted person may have relief for ineffective
assistance of counsel. 466 U.S. 668, 687-88 (1984). A petitioner must
establish: (1) counsel’s performance was deficient and fell below an objective
standard of reasonableness; and (2) the deficient performance prejudiced the
defense. Id.

When considering the first prong, “courts must ‘indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.’” Sealey v. Warden, 954 F.3d 1338, 1354 (11th Cir.
2020) (quoting Strickland, 466 U.S. at 689). And “[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.” Franks v. GDCP Warden, 975 F.3d 1165, 1176 (11th Cir. 2020)
(quoting Richter, 562 U.S. at 101). Thus, a habeas petitioner must “show that

no reasonable jurist could find that his counsel’s performance fell within the
wide range of reasonable professional conduct.” Id. This is a “doubly
deferential” standard of review that gives both the state court and the
petitioner’s attorney the benefit of the doubt. Burt, 134 S. Ct. at 13 (citing

Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011)).
The second prong requires the petitioner to “show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Sealey, 954 F.3d at 1355

(quoting Strickand, 466 U.S. at 694). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. The
critical question on federal habeas review is not whether this Court can see a
substantial likelihood of a different result had defense counsel taken a
different approach. Mays v. Hines, 141 S. Ct. 1145, 1149 (2021). All that

matters is whether the state court, “notwithstanding its substantial ‘latitude
to reasonably determine that a defendant has not [shown prejudice],’ still
managed to blunder so badly that every fairminded jurist would disagree.” Id.
(quoting Knowles v. Mirazayance, 556 U.S. 111, 123 (2009)).

“An ineffective-assistance claim can be decided on either the deficiency
or prejudice prong.” Sealey, 954 F.3d at 1355. And “[w]hile the Strickland
standard is itself hard to meet, ‘establishing that a state court’s application of
Strickland was unreasonable under § 2254(d) is all the more difficult.’” Id.

(quoting Richter, 562 U.S. at 105).
Analysis
A. Ground 1: Trial counsel failed to file a motion for a new trial

Bragg contends the evidence presented at trial was insufficient to
support a jury verdict because his testimony was believable and J.H.’s was not.
He argues his attorneys should have requested a new trial on that basis. The
postconviction court summarily rejected this claim:
Counsel may be ineffective for failing to file a motion for new trial.
Lamb v. State, 124 So. 3d 953 (Fla. 2d DCA 2013). However,
Defendant is not per se entitled to relief for ineffective assistance
of counsel without regard to the underlying facts in the case.
Williams v. State, 553 So. 2d 309 (Fla. 1st DCA 1989). Here,
Defendant is not entitled to relief because the Court is not
convinced of any strong likelihood a new trial would have been
ordered if counsel had filed the motion. See Manley v. State, 605
So. 2d 1327, 1328 (Fla. 2d DCA 1992) (affirming denial of motion
for postconviction relief for failure to file motion for new trial
where there was no “strong likelihood a new trial would have been
ordered”).

When considering a motion for new trial based on a claim that the
verdict is against the weight of the evidence, the trial court
exercises its discretion to determine whether a greater amount of
credible evidence supports one side of an issue over another.
Geibel v. State, 817 So. 2d 1042, 1044 (Fla. 2d DCA 2002). The
only issue at Defendant’s trial was whether or not the victim had
consensual sex with him. Defendant testified that he had
consensual sex with the victim, who he believed to be a prostitute,
shortly after meeting her for the first time in a store parking lot
and picking her up on his motorcycle. The victim testified that
she met Defendant while walking to the store to buy a drink. She
got on his motorcycle shortly after meeting him because he said he
would take her to find a mutual friend she had been looking for.
The victim further testified that, after driving around looking in
vain for her friend, the Defendant claimed he saw the friend and
rode to a nearby field where he pushed the victim to the ground on
her stomach and raped her. Defendant’s only explanation for why
the victim had sex with him so shortly after meeting him was that
she was a prostitute. There was no evidence, other than the
Defendant’s testimony at trial, that the victim was a prostitute.
In a pretrial statement to law enforcement, the Defendant never
mentioned prostitution. Additionally, at trial, the Defendant
testified that after they had sex, he left the victim in the field
without paying her. The State offered substantial photographic
evidence of injuries to the victim’s legs and body to support the
victim’s story that she was pushed to the ground. Katherine
Paradiso, the nurse who performed the sexual assault exam on the
victim, testified that the victim was crying and frightened and had
“significant injuries from her neck all the way down to her feet” in
the form of recently incurred scratches, abrasions, scrapes, and
bruises. Since the State offered more credible evidence as to the
issue of consent, the Court finds that the guilty verdict was
supported by the weight of the evidence and is not convinced of any
likelihood that a new trial would have been ordered if defense
counsel had filed the motion. Defendant has failed to allege any
facts that, if true, would establish either prong of Strickland.

(Doc. 10-2 at 805-06) (citations to the record omitted).
On appeal, Bragg incorrectly argued the postconviction court failed to
address Ground 1—he did not brief the 6th DCA on the merits of the claim.
Under Florida law, an appellant’s failure to fully brief and argue a claim
constitutes a waiver of the claim. Coolen v. State, 696 So. 2d 738, 742 n.2 (Fla.
1997). The State argued that Bragg waived Ground 1 in its response brief,

and the 6th DCA affirmed without a written opinion. This Court “may not
assume that had the state court issued an opinion, it would have ignored its
own procedural rules and reached the merits” of the claim. Tower v. Phillips,
7 F.3d 206, 211 (11th Cir. 1993). Because Bragg waived this ground in the

state appellate court, it is unexhausted and procedurally barred.
Even if Bragg had properly exhausted this claim, he would not be
entitled to habeas relief because it lacks merit. The state postconviction court
reasonably found the State’s evidence on the dispositive issue of consent more

credible. J.H.’s story was corroborated with photographs and the
observations of other witnesses. On the other hand, Bragg’s version of the
story was self-serving and completely uncorroborated. Bragg failed to
demonstrate any likelihood that the court would have granted a new trial.
The postconviction court’s rejection of this ground was a reasonable application
of Strickland.

Ground 1 is unexhausted, procedurally barred, and meritless.
B. Ground 2: Trial counsel failed to investigate and call
witnesses

Bragg identifies four groups of witnesses his attorneys should have
called on to provide testimony at trial. First, he claims he advised his first
attorney of a person named Misty Favors who could have testified that J.H.
was a known prostitute. Second, he argues defense counsel should have
retained an expert witness to testify that J.H.’s injuries were inconsistent with
her testimony. Third, Bragg suggests hospital employees could have testified
that J.H. sustained her injuries when she fell in the emergency room. And

fourth, Bragg identifies friends and family who could have testified that they
never saw a bite mark on his hand and that he did not have the character to
commit the charged crime.
Bragg concedes that the sub-ground about Misty Favors is unexhausted

because he withdrew it at the postconviction evidentiary hearing. The parties
disagree whether he exhausted the other three sub-grounds. The section of
Bragg’s appeal brief dedicated to this ground focused mostly on Misty Favors.
It did not mention the proposed character witnesses, so that sub-ground is

obviously unexhausted. The brief does mention the sub-grounds on hospital
employees and an expert witness, but only in the form of a conclusory claim
that the lower court erroneously denied them. The brief entirely omits

necessary details of the claims, like names and availability of potential
witnesses and what testimony they could have given. Under Florida law,
“vague and conclusory allegations on appeal are insufficient to warrant relief.”
Doorbal v. State, 983 So. 2d 464, 482 (Fla. 2008) (holding that claims are

waived when an appellant “merely refer[s] to arguments presented during the
postconviction proceedings without further elucidation”). Bragg did not
exhaust any claims included in this ground.
Even if Bragg’s conclusory argument on appeal was enough to exhaust

the claims, he would not be entitled to habeas relief. Bragg’s brief contended
the postconviction court “erroneously denied these claims based on the
credibility of counsel over defendant” and “never made an independent finding
that Counsel’s omission in this context was a reasonable strategic choice.”

(Doc. 10-2 at 1204). The postconviction court did indeed find “the testimony
of both trial counsel to be more credible than that of Defendant.” (Id. at 1180).
But that was the court’s prerogative. The postconviction court made that
finding based on a thorough and reasonable examination of the underlying

facts, and it is thus entitled to the presumption of correctness under § 2254(d).
See Coulter v. Herring, 60 F.3d at 1503. What is more, the record refutes
Bragg’s claim that the postconviction court did not consider the reasonableness
of counsel’s strategy. The court’s opinion discussed trial counsel’s strategy at
length and found no deficient performance.

Ground 2 is unexhausted, procedurally barred, and meritless.
C. Ground 3: Newly discovered evidence

Bragg claims his daughter Tiffanie Bragg ran into J.H. after the trial,
accused her of lying, and said she needed to tell the truth. According to
Tiffanie, J.H. responded that her boyfriend would not allow her to come
forward. That is not a valid basis for a federal habeas claim. “Claims of
actual innocence based on newly discovered evidence have never been held to
state a ground for federal habeas relief absent an independent constitutional

violation occurring in the underlying state criminal proceeding.” Herrera v.
Collins, 506 U.S. 390, 400 (1993). Because this ground does not allege an
independent constitutional violation in Bragg’s trial, it does not state a claim
for habeas relief.

D. Ground 4: Trial counsel failed to rehabilitate Bragg’s
credibility after he acknowledged prior felony convictions

Bragg argues his trial counsel should have rehabilitated his credibility
by eliciting details about his 14 prior felony convictions—specifically that they
were nonviolent and the result of guilty pleas. Both of Bragg’s trial attorneys
addressed this claim at the evidentiary hearing. Kruzka explained he
followed his standard practice of addressing a testifying defendant’s felony
convictions on direct examination because waiting for the prosecutor to do it
made “it look like you were hiding something.” (Doc. 10-2 at 1054). Neither

attorney thought it would be beneficial for the jury to hear the substance of
Bragg’s prior convictions, and they wanted to avoid opening the door for the
prosecutor to ask about the details of the crimes.
After summarizing the relevant testimony, the postconviction court

denied this ground:
The Court finds that counsels' performance was not deficient, and
that counsel pursued a reasonable trial strategy. Defendant had
14 prior felony convictions, as well as misdemeanor crimes of
dishonesty. To the extent Defendant believed none of his prior
convictions involved violence, burglary of a dwelling is considered
a violent offense. Had counsel opened the door to the nature of
Defendant's prior convictions, the State could have presented
evidence as to the nature of Defendant's burglary and other
convictions. Trial counsels' assessment was reasonable that the
benefit of telling the jury that Defendant resolved all his prior
cases with guilty or no contest pleas was outweighed by the danger
of emphasizing the number and nature of the prior convictions.
Defendant failed to state any facts that, if true, would establish
either prong of Strickland.

(Id. at 1084-85).
Counsel’s strategic decisions are entitled to a strong presumption of
reasonableness. Dunn v. Reeves, 594 U.S. 731, 739 (2021). The
postconviction court correctly applied Strickland when evaluating trial
counsel’s strategy for addressing Bragg’s criminal history. Bragg’s counsel
reasonably concluded that presenting the details of his lengthy criminal
history to the jury would not have helped his defense. Ground 4 is denied.

E. Ground 5: Trial counsel failed to request a limiting instruction
on the use of Bragg’s prior convictions

Bragg argues his counsel should have asked the court to instruct the jury
not to consider his 14 prior felony convictions as evidence of guilt in this case.
Bragg raised this claim in his Rule 3.850 motion, but he waived it by not
addressing it on appeal. See Coolen, supra. It is thus unexhausted and
procedurally barred.
Even if Bragg had exhausted this claim, it does not warrant federal
habeas relief. Both of Bragg’s trial attorneys testified they made a strategic
decision not to request a special limiting instruction because they did not want

to bring more attention to Bragg’s criminal history. What is more, the
postconviction court properly applied Strickland when denying the claim:
The Court finds that trial counsels’ performance was not deficient.
Fla. Std Crim. Jury Instr. 2.5 provides that “The evidence that you
are about to receive that [defendant] has been convicted of a crime
should be considered by you only in weighing the credibility of
[defendant’s] testimony and not for any other purpose.” Counsels’
decision to not request this instruction at the time the evidence of
Defendant’s prior convictions was presented was reasonable.
Counsels’ assessment was also reasonable that the final jury
instruction adequately covered the issue, and could be better
addressed in the final argument. Fla. Std. Crim. Jury Instr. 3.9
provides in pertinent part: “9. Has the witness been convicted of a
[felony] [misdemeanor involving [dishonesty] [false statement]]?”
The Court finds that the final jury instruction 3.9 adequately
covered how the jury was to assess Defendant’s credibility in light
of his prior convictions, and served counsels’ purpose of not
highlighting Defendant’s convictions or making them a feature of
the trial. Defendant failed to state any facts that, if true, would
establish either prong of Strickland.

(Doc. 10-2 at 1185-86). The decision to address Bragg’s felony convictions and
move past them as quickly as possible was well within the bounds of reasonable
representation. Accordingly, the postconviction court’s denial of this ground
was a reasonable application of Strickland.
Ground 5 is unexhausted, procedurally barred, and meritless.
F. Ground 6: Trial counsel failed to request a limiting instruction
on the use of impeachment evidence

During his direct examination, Bragg claimed he had consensual sex
with J.H. after learning she was working as a prostitute. The State
impeached the claim with the fact that Bragg’s statement to police did not
mention prostitution. Bragg argues his counsel should have requested a
limiting instruction advising the jury they could only consider the
impeachment evidence when evaluating Bragg’s credibility, not as evidence of
guilt. And when the State raised the issue in its closing argument, Bragg
argues his counsel should have objected.
Bragg raised this claim in his Rule 3.850 motion, and the postconviction

court summarily denied it:
Defendant’s claim fails as a matter of law. Defendant’s own prior
inconsistent statement to Detective Cote is admissible as
substantive evidence against him because it is a relevant party-
opponent admission. Fla. Stat. § 90.803; State v. Elkin, 595 So.
2d 119 (Fla. 3d DCA 1992). If counsel had requested the limiting
instruction Defendant describes, counsel would have been denied
because the impeachment evidence could be used as substantive
evidence of Defendant’s guilt. Counsel cannot be deemed
ineffective for failing to raise a meritless issue or failing to make a
meritless objection. Hitchcock v. State, 991 So. 2d 337, 361 (Fla.
2008); Teffeteller v. Dugger, 734 So. 2d 1009, 1019 (Fla. 1999).
Defendant failed to allege any facts that, if true, would establish
either prong of Strickland.

(Doc. 10-2 at 811). On appeal, Bragg incorrectly argued the postconviction
court failed to address this ground, but he did not argue its merits.
Accordingly, Bragg waived this ground on appeal, and it is unexhausted and
procedurally barred. See Coolen, supra.
Even if Bragg had exhausted this ground, it is meritless. Federal
habeas courts “must defer to the state’s construction of its own law” when an
attorney’s alleged failure turns on state law. Pinkney v. Sec’y, DOC, 876 F.3d
1290, 1295 (11th Cir. 2017) (quoting Alvord v. Wainwright, 725 F.2d 1282, 1291
(11th Cir. 1984)). Such deference is especially important when considering
Strickland claims because they can “drag federal courts into resolving
questions of state law.” Shinn v. Kayer, 141 S. Ct. 517, 523 (2020). The
Court thus accepts as true the state court’s determination that under Florida
law, the trial court would have denied the proposed limiting instruction and
overruled an objection. And as the postconviction court correctly stated,
counsel cannot be deficient for failing to make a futile argument.
Ground 6 is unexhausted, procedurally barred, and meritless.
G. Ground 7: Trial counsel failed to object to improper burden
shifting

Bragg argues his counsel should have objected when the State made the
following comments in the rebuttal portion of its closing argument:
She took law enforcement over here. Why would she make all this
up? Why would she come up with the story of this Amy Richards,
driving around Cabana City and then going back up here, why
would she make all this up?

(Doc. 10-2 at 398). Bragg raised this claim in his Rule 3.850 motion, and the
postconviction court found the comments did not improperly shift the burden:
In closing, defense counsel argued that the victim’s story of getting
on Defendant’s bike to look for her friend and then driving around
Cabana City violated common sense. Defense implied that the
victim was fabricating the story and was actually in the area
because she was a prostitute, since Cabana City was an area
known for prostitution. The State’s comments on rebuttal were
proper because they were a fair and invited reply to defense
counsel’s attack on the victim’s credibility. See Bettey v. State,
244 So. 3d 364, 368 (Fla. 1st DCA 2018) (context of prosecutor’s
comments that victims had no reason to lie indicate that
prosecutor was arguing why the jury should find the victims
credible, which is proper argument). See also Williamson v. State,
994 So. 2d 1000, 1012-14 (Fla. 2008) (prosecutor’s comments were
a fair reply to the defense’s closing argument that State’s witness’s
testimony was not believable). Any objection defense counsel
might have made to the comments would have been overruled, and
counsel cannot be deemed ineffective for failing to make a
meritless objection. Hitchcock v. State, 991 So. 2d 337, 361 (Fla.
2008). Defendant has failed to allege any facts that, if true, would
establish either prong of Strickland.

(Id. at 812).
This claim fails for the same reasons as Ground 6. Bragg waived it on
appeal because he did not include it in his brief, so it is unexhausted and

procedurally barred. See Coolen, supra. And even if he had exhausted it, the
postconviction court correctly denied it under Strickland after finding the
proposed objection would have been futile under state law. Ground 7 is
unexhausted, procedurally barred, and meritless.

H. Ground 8: Trial counsel failed to object to personal opinion
testimony

This ground centers on the testimony of Sergeant Andrea Fisher, the
officer who met with J.H. at the hospital after she reported the rape. Fisher’s
direct examination included the following testimony:
Q. And at some point did a Detective become involved in this case?

A. Once I verified at my level that I believe that a sexual crime
had occurred I have to notify my watch commander and
request the assistance of a specialty Detective. In this case it
would be our special victims unit Detective, whoever is on call.
In this instance it was Detective Cote.

…

Q. And throughout the investigation do you know if there were
any other leads?

A. We were plainly speaking, honestly speaking, moved by this
incident because it was such a so violent in nature that our
staff requires immediate, not operation, but a plan of action…

(Doc. 10-2 at 247). Bragg argues this was improper opinion testimony that
his counsel should have objected to.
Bragg raised this claim in his Rule 3.850 motion, and the postconviction
court summarily denied it:

26. "It is true that a witness's opinion as to the guilt or innocence
of the defendant is inadmissible in a criminal case. See, e.g.
Martinez v. State, 761 So. 2d 1074, 1079-81 (Fla. 2000) (finding
that it was reversible error where the lead investigating officer
testified that he had no doubt that Martinez had murdered the
victim and the prosecutor compounded the error by arguing in
closing arguments that the officer, a witness, and the prosecutor
had no doubt as to Martinez's guilt)." Rolle v. State, 215 So. 3d
75, 78 (Fla. 3d DCA 2016). However, like the detective witness in
Rolle, Sergeant Fisher did not offer an opinion as to the
Defendant's guilt. Rather, Sergeant Fisher made these two brief
comments in the context of her testimony explaining the
investigation and the efforts made to determine the location of the
events described by the victim and to identify a suspect. Cf. Rolle
at 79-80 (finding that detective did not comment on defendant's
guilt when he testified that, based on his investigation, he
determined that another suspect was not involved in the crimes;
detective's testimony was offered to explain why that suspect was
not arrested). The fact that law enforcement makes an initial
determination that a crime has occurred, before investigating
further - which is what Sergeant Fisher said - is not tantamount
to a comment on the Defendant's guilt.

27. Even if Sergeant Fisher's comments were improper opinion
testimony that should have caused defense counsel to object, and
even assuming such an objection would have been sustained,
Defendant cannot establish prejudice. While Sergeant Fisher
stated that she determined "at [her] level" that a sexual crime had
occurred, the record makes clear that she made this determination
based on her initial interview with the victim, not based on
evidence not presented to the jury, but known only to the
investigating officer. Similarly, the second comment, that the
"incident" was "violent in nature" was clearly based on Sergeant's
Fisher's interview with the victim and observations of the victim's
injuries. The same evidence was presented to the jury through
the testimony of the victim and nurse Paradiso. The Defendant's
position at trial was that the victim was lying about the consensual
nature of the sexual intercourse from the very first time she falsely
accused the Defendant. Closing arguments of both attorneys
centered around the credibility of the victim, and never mentioned
the opinions of law enforcement. Accordingly, any prejudice to
Defendant as a result of counsel's failure to object does not rise to
the level of prejudice required under Strickland to warrant relief.

(Doc. 10-2 at 813-14).
As with the two preceding grounds, the only mention Bragg made of this
claim in his appeal brief was the incorrect assertion that the postconviction
court failed to address it. He thus waived this ground by failing to present
the merits to the appellate court. See Coolen, supra. It is unexhausted and
procedurally barred. What is more, this Court accepts as true the
postconviction court’s determination that testimony is permissible under state
law, so an objection would have been meritless. See Pinkney, supra. The
postconviction court correctly applied Strickland because counsel cannot be
deemed ineffective for failing to make a futile objection. Ground 8 is
unexhausted, procedurally barred, and meritless.
I. Ground 9: Trial counsel failed to move for a mistrial

The trial court interrupted the cross-examination of J.H. and had the
following exchange with her boyfriend:
THE COURT: Excuse me for interrupting. Dewey, take the jury
out please.

(The jury withdrew from the courtroom.)
THE COURT: Please be seated. I am addressing myself to the
gentleman in the purple shirt. If you attempt or I see you
indicating any sort of prompting or agreement with the witness by
shaking your head as you have been doing for the last 15 minutes,
I will hold you in contempt of Court and exclude you from this
courtroom. Do you understand?

MR. RICHARDS: I do understand, sir. I am sorry.

THE COURT: I want you to be able to attend these proceedings.
I will not have you interfere with them. And what you have been
doing has been interfering with them.

MR. RICHARDS: I am sorry. I didn’t realize –

THE COURT: Do not wag your head side to side, up and down or
any other way. Don’t make any facial expressions or grimaces, sit
there stoically. I understand it may be difficult for you to do so,
but if you cannot abide by this direction leave the courtroom now.

MR. RICHARDS: I will abide by your direction.

(Doc. 10-2 at 227-28). Bragg argues his counsel should have moved for a
mistrial.
Bragg raised this claim in his Rule 3.850 motion. The postconviction
court denied it:
Defendant's claim fails because he cannot prove that he was
prejudiced by counsel's failure to move for a mistrial. To establish
prejudice, Defendant must demonstrate a reasonable probability
that a timely motion for mistrial would have been granted. Moore
v. State, 74 So.3d 547, 549-550 (Fla. 5th DCA 2011). A motion for
mistrial should only be granted when it is absolutely necessary
because the error is so prejudicial as to vitiate the entire trial.
Thomas v. State, 748 So.2d 970, 980 (Fla. 1999). Even if counsel
had made a timely motion, it would not have been absolutely
necessary to grant a mistrial. The record reflects that the trial
judge addressed the boyfriend's behavior after removing the jury,
and did not resume the trial until the boyfriend had assured him
that he would no longer gesture at the victim. The record reflects
no further disturbances from the boyfriend. Further, Defendant
speculates that the jury knew who the boyfriend was or saw him
shaking his head. Defendant cannot recover on a claim based on
speculation or possibility. Maharaj v. State, 778 So.2d 944,951
(Fla. 2001). Defendant has failed to allege facts that, if true,
would establish either prong of Strickland.

(Doc. 10-2 at 814-15) (citations to the record omitted).
Like Grounds 6-8, the only mention of this claim in Bragg’s appeal brief
is the incorrect assertion that the postconviction court failed to address it.
Bragg thus waived this ground, and it is unexhausted and procedurally barred.
See Coolen, supra. It also lacks merit. The Court accepts as true the
postconviction court’s determination that Bragg did not establish entitlement
to a new trial under state law. See Pinkney, supra. A motion for a mistrial
would not have been granted, and counsel cannot be deemed ineffective for
failing to make a futile motion. Ground 9 is unexhausted, procedurally
barred, and meritless.
J. Ground 10: Trial counsel misadvised Bragg to reject the
State’s plea offer

Bragg claims he rejected a 15-year plea offer because he mistakenly
believed the longest prison term he could receive after being found guilty at
trial was 15 years. He blames his attorneys for failing to advise that his
habitual offender status increased the maximum sentence to 30 years. Bragg
raised this ground in his Rule 3.850 motion, but he withdrew it at the
evidentiary hearing. (Doc. 10-2 at 954). Thus, it is unexhausted and
procedurally barred.

K. Ground 11: Cumulative effect

Finally, Bragg argues he is entitled to relief based on the cumulative
effect of two or more of the foregoing claims of ineffective assistance of counsel.
Courts in the Eleventh Circuit “address claims of cumulative error by first
considering the validity of each claim individually, and then examining any
errors that we find in the aggregate and in light of the trial as a whole to
determine whether the [petitioner] was afforded a fundamentally fair trial.”
Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012). Because

Bragg’s individual claims lack merit, there is no error to accumulate. See id.
Ground 11 is denied.
DENIAL OF 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).
Rather, a district court must first issue a certificate of appealability (COA).
“A [COA] 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 make such a

showing, a 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. 478, 484 (2000)), or that “the issues presented were adequate to deserve
encouragement to proceed further,” Miller—El v. Cockrell, 5387 U.S. 322, 335—
36 (2003) (citations omitted). Bragg has not made the requisite showing here
and may not have a certificate of appealability on his Petition.
Accordingly, it is now
ORDERED:
Petitioner Christopher Bragg’s Petition for Writ of Habeas Corpus under
28 U.S.C. § 2254 (Doc. 1)is DENIED. The Clerk is DIRECTED to terminate

any pending motions and deadlines, enter judgment, and close this case.
DONE and ORDERED in Fort Myers, Florida on February 18, 2025.

UNITED STATES DISTRICT JUDGE

SA: FTMP-1
Copies: All parties of record

Page 26 of 26

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10801627. Public record. Not legal advice.