Acosta-Cortina v. Secretary, Department of Corrections (Pinellas County)

UMNIIDTEDDL ES TDAISTTERS IDCITS TORFI FCLTO CROIDURAT

TAMPA DIVISION

YORDAN ACOSTA-CORTINA,

Applicant,

v. CASE NO. 8:22-cv-860-SDM-TGW

SECRETARY, Department of Corrections,

Respondent.

____________________________________/

ORDER

Acosta-Cortina applies under 28 U.S.C. § 2254 for the writ of habeas corpus

(Doc. 13) and challenges his conviction for second-degree felony murder, for which

he is imprisoned for twenty-four years. Numerous exhibits (“Respondent’s Exhibit

__”) support the response. (Doc. 19) The amended application asserts four grounds

for relief, each of which is meritless.

I. BACKGROUND1

In 2004, Acosta-Cortina began dating Madelyn Gonzalez-Mederos.

(Respondent’s Exhibit 1a at 764) They lived in a small town in Cuba. (Respondent’s

Exhibit 1a at 366, 764) Acosta-Cortina was “controlling,” “jealous[ ],” and

physically abusive. (Respondent’s Exhibit 1a at 287, 479) In September 2013,

Gonzalez-Mederos and her mother moved to Tampa, Florida. (Respondent’s

1 This summary of the facts derives from the trial transcript. (Respondent’s Exhibit 1a)

Exhibit 1a at 371) Acosta-Cortina followed in December 2014 and began sharing an

apartment with Gonzalez-Mederos. (Respondent’s Exhibit 1a at 1175, 1177) She

agreed to the arrangement because she believed “he had changed.” (Respondent’s

Exhibit 1a at 461)

On November 27, 2015, Gonzalez-Mederos moved out of the apartment while

Acosta-Cortina was at work. (Respondent’s Exhibit 1a at 291–92) She had begun a

romantic relationship with a co-worker, Addienys Calderon-Martinez.

(Respondent’s Exhibit 1a at 294) Gonzalez-Mederos called Acosta-Cortina and told

him to “leave [her] alone” because she had “left.” (Respondent’s Exhibit 1a at 380)

She did not mention her relationship with Calderon-Martinez. (Respondent’s

Exhibit 1a at 380)

Over the next two weeks, Acosta-Cortina called Gonzalez-Mederos “over a

hundred times” and sent her more than 2,000 text messages. (Respondent’s Exhibit

1a at 1280) She did not answer the calls. (Respondent’s Exhibit 1a at 294) She

responded to “some” of the texts by telling him to “leave [her] alone.”

(Respondent’s Exhibit 1a at 295) In one text, Acosta-Cortina wrote, “I am not the

one who destroyed me and abandoned me. If you betrayed me, I will find out. And

if you are trying to get me to hate you, well, know that I am a bad meal.”

(Respondent’s Exhibit 1a at 327) Gonzalez-Mederos interpreted the text as a

“threat” because “I am a bad meal” is a Cuban expression for “[y]ou know what I’m

capable of doing.” (Respondent’s Exhibit 1a at 327, 419)

Acosta-Cortina tried to find Gonzalez-Mederos. He showed up unannounced

at her mother’s house. (Respondent’s Exhibit 1a at 772) During this visit, she falsely

claimed that Gonzalez-Mederos had moved to Miami. (Respondent’s Exhibit 1a

at 773) She thought that he would “leave her [daughter] alone” if he believed “she

wasn’t in Tampa.” (Respondent’s Exhibit 1a at 773) Instead, Acosta-Cortina went

to Miami to look for Gonzalez-Mederos. (Respondent’s Exhibit 1a at 773–74)

When she learned of the trip, Gonzalez-Mederos felt “lots of fear.” (Respondent’s

Exhibit 1a at 332)

Soon after, Acosta-Cortina showed up unannounced at Gonzalez-Mederos’s

place of employment, a factory in Pinellas County. (Respondent’s Exhibit 1a at 299)

The factory was “closed to the public”; Acosta-Cortina entered by following

someone through an employee entrance. (Respondent’s Exhibit 1a at 299, 753)

Gonzalez-Mederos was “terrified” when she saw Acosta-Cortina approach her on

the factory floor. (Respondent’s Exhibit 1a at 300) She was sitting next to Calderon-

Martinez, her new boyfriend. (Respondent’s Exhibit 1a at 299) She told Acosta-

Cortina, “[W]hat are you doing here[?] . . . . [Y]ou’re going to give me a problem.

I’m at work.” (Respondent’s Exhibit 1a at 300) Acosta-Cortina said he would “wait

outside” until her shift ended two hours later. (Respondent’s Exhibit 1a at 301)

When she got off work and realized he was “still sitting outside,” Gonzalez-

Mederos called 911. (Respondent’s Exhibit 1a at 301–03) Law enforcement arrived

and told Acosta-Cortina to “not come back to the property and leave her alone.”

(Respondent’s Exhibit 1a at 729) Later that day, Acosta-Cortina texted Gonzalez-

Mederos, “For me there are no women other than you. . . . [A]nd that skinny, ugly

guy that was talking to you when I got there, who is he?” (Respondent’s Exhibit 1a

at 325–26, 1286)

Four days later, Acosta-Cortina returned to the factory. (Respondent’s

Exhibit 1a at 1304) He waited in his car until Gonzalez-Mederos got off work.

(Respondent’s Exhibit 1a at 1311–13) She and Calderon-Martinez left the factory

together and got into his car. (Respondent’s Exhibit 1a at 1313) Gonzalez-Mederos

drove; Calderon-Martinez sat in the front passenger seat. (Respondent’s Exhibit 1a

at 340–41) Acosta-Cortina followed the pair as they left the parking lot.

(Respondent’s Exhibit 1a at 341, 1314) Gonzalez-Mederos pulled into a gas station,

and Acosta-Cortina stopped next to her. (Respondent’s Exhibit 1a at 341–42) She

saw Acosta-Cortina, panicked, and decided to “[f]lee.” (Respondent’s Exhibit 1a

at 342) He “cut[ ] in front” of her, but she eventually exited the gas station.

(Respondent’s Exhibit 1a at 488)

Gonzalez-Mederos drove “very fast” — approximately 100 miles per hour.

(Respondent’s Exhibit 1a at 343–44) Acosta-Cortina followed her within “a car’s

length.” (Respondent’s Exhibit 1a at 345) As she passed another gas station,

Gonzalez-Mederos tried to lose Acosta-Cortina by making a U-turn. (Respondent’s

Exhibit 1a at 345) Acosta-Cortina “jumped a cement median,” “turned around,”

and resumed chasing Gonzalez-Mederos. (Respondent’s Exhibit 1a at 500) Acosta-

Cortina eventually “veered over to the right” and ran Gonzalez-Mederos “off the

road.” (Respondent’s Exhibit 1a at 521) She crashed into “a pole and a tree.”

(Respondent’s Exhibit 1a at 645) Gonzalez-Mederos survived the crash; Calderon-

Martinez died before paramedics arrived. (Respondent’s Exhibit 1a at 700)

Acosta-Cortina remained at the scene. (Respondent’s Exhibit 1a at 826) He

told an officer that “he was just heading southbound on 66th Street when he

happened to see a car accident.” (Respondent’s Exhibit 1a at 830) The officer

informed him “that there was a dash cam video to suggest that he was racing or

driving at a high rate of speed with the other vehicle.” (Respondent’s Exhibit 1a

at 830-31) He said, “It must have been another vehicle.” (Respondent’s Exhibit 1a

at 832)

Acosta-Cortina was charged with second-degree felony murder.

(Respondent’s Exhibit 1 at 23) That offense requires proof that “(1) the victim is

dead; (2) the defendant was not the person who actually killed the victim, but he or

she did commit . . . a felony; (3) the victim’s death was caused during and was the

consequence of the commission . . . of the felony; and (4) the person who actually

killed the victim was not involved in the commission of the felony.” Dean v. State,

230 So. 3d 420, 423 (Fla. 2017). The prosecution alleged that Gonzalez-Mederos

killed Calderon-Martinez “during” Acosta-Cortina’s commission of aggravated

stalking. (Respondent’s Exhibit 1 at 23) Aggravated stalking occurs when a person

“willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another

person and makes a credible threat to that person.” Fla. Stat. § 784.048(3).

One year later, the prosecution amended the charging document to replace

second-degree felony murder with first-degree felony murder. (Respondent’s Exhibit

1 at 38) The difference between the two offenses lies in who killed the victim. First-

degree felony murder involves a “killing . . . done by a principal . . . to the felony”;

second-degree felony murder requires proof that the killer was not a principal to the

felony. State v. Williams, 565 So. 2d 881, 882 (Fla. 1st DCA 1990). In addition to

first-degree felony murder, Acosta-Cortina was charged with manslaughter by

culpable negligence. (Respondent’s Exhibit 1 at 38–39)

The case went to trial. The jury found Acosta-Cortina guilty of (1) the lesser-

included offense of second-degree felony murder and (2) manslaughter by culpable

negligence. (Respondent’s Exhibit 1 at 65–66) Citing the “single homicide rule,” the

trial court dismissed the manslaughter conviction.2 (Respondent’s Exhibit 1 at 752)

Acosta-Cortina was sentenced to twenty-four years’ imprisonment for second-degree

felony murder. (Respondent’s Exhibit 1 at 798) The appellate court affirmed the

conviction without a written opinion. (Respondent’s Exhibit 7) Acosta-Cortina

unsuccessfully moved for post-conviction relief under Florida Rule of Criminal

Procedure 3.850. (Respondent’s Exhibit 13 at 466–83; Respondent’s Exhibit 16)

This federal habeas application followed. (Docs. 1, 13)

II. STANDARD OF REVIEW

The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

governs this proceeding. Wilcox v. Fla. Dep’t of Corr., 158 F.3d 1209, 1210 (11th Cir.

2 Under the single homicide rule, “a defendant can be charged and convicted under multiple

criminal statutes for conduct causing another’s death during one criminal episode, [but he] can only

be punished once for that death.” Raja v. State, 317 So. 3d 139, 147 (Fla. 4th DCA 2021).

1998). Section 2254(d), which creates a highly deferential standard for federal court

review of a state court adjudication, states in pertinent part:

An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State

court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings

unless the adjudication of the claim —

(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.

Williams v. Taylor, 529 U.S. 362, 412–13 (2000), explains this deferential standard:

In sum, § 2254(d)(1) places a new constraint on the power

of a federal habeas court to grant a state prisoner’s

application for a writ of habeas corpus with respect to

claims adjudicated on the merits in state court. Under §

2254(d)(1), the writ may issue only if one of the following

two conditions is satisfied — the state court adjudication

resulted in a decision that (1) “was contrary to . . . clearly

established Federal law, as determined by the Supreme

Court of the United States” or (2) “involved an

unreasonable application of . . . clearly established Federal

law, as determined by the Supreme Court of the United

States.” Under the “contrary to” clause, a federal habeas

court may grant the writ if the state court arrives at a

conclusion opposite to that reached by this Court on a

question of law or if the state court decides a case

differently than this Court has on a set of materially

indistinguishable facts. Under the “unreasonable

application” clause, a federal habeas court may grant the

writ if the state court identifies the correct governing legal

principle from this Court’s decisions but unreasonably

applies that principle to the facts of the prisoner’s case.

“The focus . . . is on whether the state court’s application of clearly established

federal law is objectively unreasonable[;] . . . an unreasonable application is different

from an incorrect one.” Bell v. Cone, 535 U.S. 685, 693 (2002). “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.” Harrington v. Richter, 562

U.S. 86, 103 (2011). See White v. Woodall, 572 U.S. 415, 427 (2014) (“The critical

point is that relief is available under § 2254(d)(1)’s unreasonable-application clause if,

and only if, it is so obvious that a clearly established rule applies to a given set of

facts that there could be no fairminded disagreement on the question . . . .”); Woods v.

Donald, 575 U.S. 312, 316 (2015) (“And an ‘unreasonable application of’ those

holdings must be objectively unreasonable, not merely wrong; even clear error will

not suffice.”) (citing Woodall, 572 U.S. at 419). Accord Brown v. Head, 272 F.3d 1308,

1313 (11th Cir. 2001) (“It is the objective reasonableness, not the correctness per se, of

the state court decision that we are to decide.”). The phrase “clearly established

Federal law” encompasses only the holdings of the United States Supreme Court “as

of the time of the relevant state-court decision.” Williams, 529 U.S. at 412.

The purpose of federal review is not to re-try the state case. “[AEDPA]

modified a federal habeas court’s role in reviewing state prisoner applications in

order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are

given effect to the extent possible under law.” Bell, 535 U.S. at 694. A federal court

must afford due deference to a state court’s decision. “AEDPA prevents defendants

— and federal courts — from using federal habeas corpus review as a vehicle to

second-guess the reasonable decisions of state courts.” Renico v. Lett, 559 U.S. 766,

779 (2010). See also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“This is a ‘difficult

to meet,’ . . . and ‘highly deferential standard for evaluating state-court rulings,

which demands that state-court decisions be given the benefit of the doubt’ . . . .”)

(citations omitted).

When the last state court to decide a federal claim explains its decision in a

reasoned opinion, a federal habeas court reviews the specific reasons as stated in the

opinion and defers to those reasons if they are reasonable. Wilson v. Sellers, 138 S. Ct.

1188, 1192 (2018) (“[A] federal habeas court simply reviews the specific reasons

given by the state court and defers to those reasons if they are reasonable.”). When

the relevant state-court decision is not accompanied with reasons for the decision,

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, 138 S. Ct. at 1192.

In per curiam decisions without written opinions, the appellate court affirmed

Acosta-Cortina’s conviction and affirmed the denial of his Rule 3.850 motion for

post-conviction relief. The appellate court’s per curiam decisions warrant deference

under Section 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). See also Richter, 562 U.S. at 100 (“When a federal claim has been

presented to a state court and the state court has denied relief, it may be presumed

that the state court adjudicated the claim on the merits in the absence of any

indication or state-law procedural principles to the contrary.”), and Bishop v. Warden,

726 F.3d 1243, 1255–56 (11th Cir. 2013) (describing the difference between an

“opinion” or “analysis” and a “decision” or “ruling” and explaining that deference is

accorded the state court’s “decision” or “ruling” even absent an “opinion” or

“analysis”).

As Pinholster explains, 563 U.S. at 181–82, review of the state court decision is

limited to the record that was before the state court:

We now hold that review under § 2254(d)(1) is limited to

the record that was before the state court that adjudicated

the claim on the merits. Section 2254(d)(1) refers, in the

past tense, to a state-court adjudication that “resulted in” a

decision that was contrary to, or “involved” an

unreasonable application of, established law. This

backward-looking language requires an examination of the

state-court decision at the time it was made. It follows

that the record under review is limited to the record in

existence at that same time, i.e., the record before the state

court.

Acosta-Cortina bears the burden of overcoming by clear and convincing

evidence a state court’s fact determination. “[A] determination of a factual issue

made by a State court shall be presumed to be correct. The applicant shall have the

burden of rebutting the presumption of correctness by clear and convincing

evidence.” 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a

finding of fact but not to a mixed determination of law and fact. Parker v. Head, 244

F.3d 831, 836 (11th Cir. 2001).

III. TRIAL COURT ERROR

Ground One:

Acosta-Cortina contends that his right to due process was violated because he

was convicted of second-degree felony murder, “a crime that was not charged” in the

operative indictment. (Doc. 13 at 5) Acosta-Cortina was originally charged with

second-degree felony murder, but the prosecution later replaced that charge with

first-degree felony murder. (Respondent’s Exhibit 1 at 23, 38) During trial, the

prosecution requested a jury instruction on second-degree felony murder as a lesser-

included offense. (Respondent’s Exhibit 1a at 839–40) The prosecution explained

that the jury might “believe[ ] that [Calderon-Martinez] died during the course of

[the] stalking but rather than [Acosta-Cortina] causing the death[,] [Gonzalez-

Mederos] caused the death.” (Respondent’s Exhibit 1a at 840) The court agreed to

give the instruction after Acosta-Cortina stated that he had “[n]o objection.”

(Respondent’s Exhibit 1a at 1363)

Acosta-Cortina argues that he was convicted of “an uncharged offense” that

he was not “prepared to defend [at] trial.” (Doc. 13 at 8) The appellate court

rejected this argument in an unexplained decision. (Respondent’s Exhibit 7)

Consequently, Acosta-Cortina must show that the state court’s decision possessed

“no reasonable basis.” Richter, 562 U.S. at 98. “[I]f some fairminded jurists could

agree with the state court’s decision, although others might disagree, federal habeas

relief must be denied.” Hill v. Humphrey, 662 F.3d 1335, 1346 (11th Cir. 2011).

Acosta-Cortina cannot meet his burden. A criminal defendant is entitled to

“notice of the specific charge” against him. Cole v. State of Arkansas, 333 U.S. 196,

201 (1948). This principle “applies to lesser-included offenses.” Chambers v. State,

975 So. 2d 444, 449 (Fla. 2d DCA 2007). But an alleged lack of notice does not

warrant relief if (1) the defendant “did not object” at trial to the lesser-included-

offense instruction and (2) the lesser-included offense “was lesser in degree and

penalty than the main charge.” Ayala v. State, 879 So. 2d 1, 3 (Fla. 2d DCA 2004);

see also Antosh v. State, 510 So. 2d 1158, 1159 (Fla. 3d DCA 1987) (affirming

conviction on lesser-included offense “because (1) the defendant did not object to a

jury charge below on discharging a firearm in public as a lesser offense, and (2) the

offense of discharging a firearm in public is lesser in degree and penalty than the

offense charged in the information”); Rodriguez v. Kernan, 845 F. App’x 584, 586 (9th

Cir. 2021) (deferring to “state court’s decision” that petitioner “waived his right to

notice of the [lesser-included offense of] false imprisonment . . . when his counsel

failed to object to the jury instructions”).3

Acosta-Cortina “did not object” at trial to the instruction on second-degree

felony murder. Ayala, 879 So. 2d at 3. That offense is “lesser in degree and penalty

than the main charge” of first-degree felony murder. Ayala, 879 So. 2d at 3.

Specifically, second-degree felony murder is “a felony of the first degree, punishable

by imprisonment for a term of years not exceeding life.” Fla. Stat. § 782.04(3). First-

3 A defendant “may see a benefit in” agreeing to an instruction on a lesser-included offense,

“concluding that although a jury may not be inclined to acquit him of any wrongdoing, they may be

inclined to disagree that the charge is as serious as alleged by the state.” Chambers, 975 So. 2d

at 449. This “permits some chance that the defendant will receive a lesser sentence or perhaps some

related future benefit by virtue of being convicted of a lesser charge.” Chambers, 975 So. 2d at 449.

degree felony murder, by contrast, is a “capital felony” punishable either by death or

by life imprisonment without the possibility of parole. Fla. Stat. §§ 782.04(1)(a),

775.082(1)(a). A reasonable jurist could conclude that Acosta-Cortina is entitled to

no relief because he “acquiesc[ed]” in instructing the jury on second-degree felony

murder, an offense “lesser in degree than the main offense.”4 Weber v. State, 602 So.

2d 1316, 1318 (Fla. 5th DCA 1992).

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

Acosta-Cortina claims ineffective assistance of counsel, a difficult claim to

sustain. “[T]he cases in which habeas petitioners can properly prevail on the ground

of ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46

F.3d 1506, 1511 (11th Cir. 1995) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir.

1994)). Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains that

Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of

counsel claim:

The law regarding ineffective assistance of counsel claims

is well settled and well documented. In Strickland v.

Washington, 466 U.S. 668 (1984), the Supreme Court set

forth a two-part test for analyzing ineffective assistance of

counsel claims. According to Strickland,

First, the defendant must show that counsel’s

performance was deficient. This requires

showing that counsel made errors so serious

that counsel was not functioning as the

“counsel” guaranteed the defendant by the

Sixth Amendment. Second, the defendant

4 The respondent argues that ground one is procedurally defaulted, but “a federal court may

skip over the procedural default analysis if a claim would fail on the merits in any event.” Dallas v.

Warden, 964 F.3d 1285, 1307 (11th Cir. 2020).

mpruejsut dsihcoewd tthhea td tehfeen dseef.i c Tiehnits preeqrfuoirrmesa nce

showing that counsel’s errors were so serious

as to deprive the defendant of a fair trial, a

trial whose result is reliable.

“There is no reason for a court deciding an ineffective assistance claim . . . to

address both components of the inquiry if the defendant makes an insufficient

showing on one.” Strickland, 466 U.S. at 697. “[C]ounsel is strongly presumed to

have rendered adequate assistance and made all significant decisions in the exercise

of reasonable professional judgment.” 466 U.S. at 690. “[A] court deciding an

actual ineffectiveness claim must judge the reasonableness of counsel’s challenged

conduct on the facts of the particular case, viewed as of the time of counsel’s

conduct.” 466 U.S. at 690. Strickland requires that “in light of all the circumstances,

the identified acts or omissions were outside the wide range of professionally

competent assistance.” 466 U.S. at 690.

Acosta-Cortina must demonstrate 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.” Strickland, 466 U.S. at 691. To meet this burden, Acosta-Cortina

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.” 466 U.S. at 694.

Acosta-Cortina cannot meet his burden by showing that the avenue chosen by

counsel proved unsuccessful. White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir.

1992). Strickland cautions that “strategic choices made after thorough investigation

of law and facts relevant to plausible options are virtually unchallengeable; and

strategic choices made after less than complete investigation are reasonable precisely

to the extent that reasonable professional judgments support the limitations on

investigation.” Strickland, 466 U.S. at 690–91.

Sustaining a claim of ineffective assistance of counsel under Section 2254(d) is

very difficult 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. See Nance v. Warden, Ga. Diag. Prison, 922 F.3d 1298, 1303

(11th Cir. 2019) (“Given the double deference due, it is a ‘rare case in which an

ineffective assistance of counsel claim that was denied on the merits in state court is

found to merit relief in a federal habeas proceeding.’”) (quoting Johnson v. Sec’y, Dep’t

Corrs., 643 F.3d 907, 911 (11th Cir. 2011)).

In determining “reasonableness,” Section 2254(d) authorizes determining only

“whether the state habeas court was objectively reasonable in its Strickland inquiry”

and not independently assessing whether counsel’s actions were reasonable. Putman

v. Head, 268 F.3d 1223, 1244 n.17 (11th Cir. 2001). The presumption of correctness

and the highly deferential standard of review require that the analysis of each ground

begin with the state court’s analysis.

Ground Two:

Acosta-Cortina faults trial counsel for “opening the door” to “prior bad acts”

that had been excluded during a pre-trial hearing. (Doc. 13 at 9) Before trial, the

prosecution moved to admit evidence that Acosta-Cortina was “controlling,”

“jealous,” and “violent” during his relationship with Gonzalez-Mederos.

(Respondent’s Exhibit 1 at 813–14) The prosecution cited two “specific incidents” in

Cuba in which Acosta-Cortina physically abused Gonzalez-Mederos. (Respondent’s

Exhibit 1 at 41–43) According to the prosecution, this evidence showed that Acosta-

Cortina made “a credible threat of violence” to Gonzalez-Mederos after she broke up

with him. (Respondent’s Exhibit 1 at 815) The court allowed the prosecution to

introduce evidence that Acosta-Cortina “was always controlling, always getting

jealous, always getting angry.” (Respondent’s Exhibit 1 at 877) But the prosecution

could not elicit testimony about “the actual incidents” of violence “unless the door

[was] opened.” (Respondent’s Exhibit 1 at 877)

During cross-examination of Gonzalez-Mederos, counsel asked whether

Acosta-Cortina did “anything to put [her] in fear other than those texts that we’ve

talked about and the phone call[s].” (Respondent’s Exhibit 1a at 460) She answered,

“No, sir.” (Respondent’s Exhibit 1a at 460) At the prosecution’s request, the court

found that this question opened the door to specific incidents of domestic violence.

(Respondent’s Exhibit 1a at 465–66) On re-direct examination, Gonzalez-Mederos

testified that Acosta-Cortina was “physically violent” with her. (Respondent’s

Exhibit 1a at 479) She did not provide any examples. But her mother testified that

Acosta-Cortina “smacked her [daughter’s] cheek” once in Cuba. (Respondent’s

Exhibit 1a at 767)

Acosta-Cortina contends that counsel provided ineffective assistance by

“inadvertent[ly] . . . giving the state the opportunity to introduce prejudicial prior bad

acts.” (Doc. 13 at 13) The post-conviction court held that Acosta-Cortina could not

establish prejudice. (Respondent’s Exhibit 13 at 479) According to the court, the

prosecution presented “sufficient evidence of [Acosta-Cortina’s] aggravated stalking

and murder from November 27 [the date of the break-up] through the crash on

December 12.” (Respondent’s Exhibit 13 at 478) Thus, Acosta-Cortina suffered “no

prejudice from the presentation of superfluous testimony about [his] behavior or

actions prior to that time.” (Respondent’s Exhibit 13 at 478)

The court explained that Acosta-Cortina “harass[ed] [Gonzalez-Mederos] via

text and phone calls, even after [she] told [him] to leave her alone.” (Respondent’s

Exhibit 13 at 478) He “showed up at her mother’s home unannounced, went down

to Miami to look for her, and showed up twice to her work unannounced.”

(Respondent’s Exhibit 13 at 478–79) Then he “chased [her] vehicle with his own

vehicle[,] ran her off the road,” and “lied to law enforcement about just happening

upon the crash and not driving the other speeding vehicle.” (Respondent’s Exhibit

13 at 479) According to the court, “[e]ven if the prior bad acts did not come in, the

remaining evidence of [Acosta-Cortina’s] texts he admitted to sending as well as his

actions observed by non-interested witnesses established a credible threat to

[Gonzalez-Mederos] and the death of the victim.” (Respondent’s Exhibit 13 at 479)

Therefore, “had counsel [kept out] the prior bad acts, the outcome of the trial would

have been the same.” (Respondent’s Exhibit 13 at 479)

This ruling was reasonable. “The prejudice prong requires the petitioner to

establish a reasonable probability that, but for counsel’s errors, the outcome at trial

would have been different.” Reed v. Sec’y, Fla. Dep’t of Corr., 767 F.3d 1252, 1261

(11th Cir. 2014). “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694. “It is not enough for the

[petitioner] to show that the errors had some conceivable effect on the outcome of

the proceeding.” Strickland, 466 U.S. at 693. Instead, “counsel’s errors [must be] so

serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable.”

Strickland, 466 U.S. at 687. “Applying AEDPA to Strickland’s prejudice standard,

[the district court] must decide whether the state court’s conclusion that [counsel’s]

performance . . . didn’t prejudice [Acosta-Cortina] — that there was no substantial

likelihood of a different result — was so obviously wrong that its error lies beyond

any possibility for fairminded disagreement.” Mungin v. Sec’y, Fla. Dep’t of Corr., 89

F.4th 1308, 1317 (11th Cir. 2024).

Acosta-Cortina cannot meet this demanding standard. To prove felony

murder, the prosecution needed to establish that Acosta-Cortina committed

aggravated stalking. Fla. Stat. §§ 782.04(1)(a)2, 782.04(3). Aggravated stalking

occurs when a person “willfully, maliciously, and repeatedly follows, harasses, or

cyberstalks another person and makes a credible threat to that person.” Fla. Stat.

§ 784.048(3). A “credible threat” means “a verbal or nonverbal threat, . . . including

threats delivered by electronic communication or implied by a pattern of conduct,

which places the person who is the target of the threat in reasonable fear for his or

her safety . . . , and which is made with the apparent ability to carry out the threat to

cause such harm.” Fla. Stat. § 784.048(1)(c).

According to the prosecution, Acosta-Cortina’s physical abuse of Gonzalez-

Mederos showed that he made “a credible threat of violence” after she ended the

relationship. (Respondent’s Exhibit 1 at 815) But even without the limited

testimony about physical abuse, substantial evidence established that Acosta-Cortina

committed aggravated stalking. After the break-up, he called Gonzalez-Mederos

“over a hundred times” and sent her more than 2,000 text messages. (Respondent’s

Exhibit 1a at 1280) She did not answer the calls, though she responded to “some” of

the texts by telling him to “leave [her] alone.” (Respondent’s Exhibit 1a at 294–95)

In one text, Acosta-Cortina wrote, “If you betrayed me, I will find out. And if you

are trying to get me to hate you, well, know that I am a bad meal.” (Respondent’s

Exhibit 1a at 327) Gonzalez-Mederos interpreted the text as a “threat” because “I

am a bad meal” is a Cuban phrase that means “[y]ou know what I’m capable of

doing.” (Respondent’s Exhibit 1a at 327, 419) Moreover, Acosta-Cortina “showed

up at her mother’s home unannounced, went down to Miami to look for her, and

showed up twice to her work unannounced.” (Respondent’s Exhibit 13 at 478–79)

When these efforts failed, he “chased [her] vehicle with his own vehicle and ran her

off the road.” (Respondent’s Exhibit 13 at 479)

Even apart from the limited evidence of physical abuse, Acosta-Cortina’s

words and conduct after the break-up established that he “willfully, maliciously, and

repeatedly follow[ed], harasse[d], or cyberstalk[ed] [Gonzalez-Mederos] and ma[de]

a credible threat to [her].” Fla. Stat. § 784.048(3). Given the strength of the

prosecution’s case, a reasonable jurist could find that Acosta-Cortina suffered no

prejudice from the evidence of physical abuse presented at trial. See Strickland, 466

U.S. at 695–96 (“In making [the prejudice] determination, a court hearing an

ineffectiveness claim must consider the totality of the evidence before the judge or

jury. . . . [A] verdict or conclusion only weakly supported by the record is more likely

to have been affected by errors than one with overwhelming record support.”); Bates

v. Sec’y, Fla. Dep’t of Corr., 768 F.3d 1278, 1300 n.9 (11th Cir. 2014) (“The

overwhelming evidence of [petitioner’s] guilt . . . makes it obvious that [he] cannot

show Strickland prejudice”).

Ground Three:

Acosta-Cortina contends that trial counsel provided ineffective assistance by

failing to investigate and call four witnesses: Diego Jimenez, Iosvani Mendez, Frank

Oviedo, and Erisbel Blanco-Hernandez. (Doc. 13 at 14) The witnesses were friends

of Acosta-Cortina. (Doc. 13 at 15–20) They allegedly would have testified that

Acosta-Cortina and Gonzalez-Mederos were “very loving and respectful of [each

other],” that Gonzalez-Mederos “always seemed very happy,” and that “there was

no indication of any violent, jealous, or controlling behavior [by Acosta-Cortina].”

(Doc. 13 at 15, 18–19) Acosta-Cortina argues that this testimony would have created

“a reasonable probability that the jury would have disregarded the testimony of

[Gonzalez-Mederos].” (Doc. 13 at 20)

The post-conviction court held that Acosta-Cortina suffered “no prejudice

from the absence of the . . . potential defense witnesses who would have testified that

[he] was a good guy before [the break-up].” (Respondent’s Exhibit 13 at 481)

According to the court, evidence that Acosta-Cortina “was jealous or controlling or

instilled fear in [Gonzalez-Mederos before the break-up]” was “not necessary to find

that [he] harassed and instilled fear in [her] after [the relationship ended].”

(Respondent’s Exhibit 13 at 481) The court explained that “[t]he evidence presented

[about Acosta-Cortina’s behavior after the break-up] established the elements of the

offense.” (Respondent’s Exhibit 13 at 482) Therefore, “[e]ven if counsel [had] called

character witnesses on [Acosta-Cortina’s] behalf, the remaining evidence of [the]

texts he admitted to sending as well as his actions observed by non-interested

witnesses established a credible threat to [Gonzalez-Mederos] and the death of the

victim.” (Respondent’s Exhibit 13 at 482)

The rejection of this claim was reasonable. Acosta-Cortina cannot show that

the post-conviction court’s finding of no prejudice “was so obviously wrong that its

error lies beyond any possibility for fairminded disagreement.” Mungin, 89 F.4th

at 1317. As explained above, Acosta-Cortina’s words and conduct after the break-up

were independently sufficient to prove aggravated stalking, the predicate offense for

second-degree felony murder. Thus, a fairminded jurist could find no “reasonable

probability that, but for counsel’s [failure to call the potential witnesses], the outcome

at trial would have been different.” Reed, 767 F.3d at 1261.

Moreover, the burden of establishing prejudice under Strickland “is particularly

heavy where the petitioner alleges ineffective assistance in failing to call a witness

because often allegations of what a witness would have testified to are largely

speculative.” McKiver v. Sec’y, Fla. Dep’t of Corr., 991 F.3d 1357, 1365 (11th Cir.

2021). For that reason, “a petitioner’s own assertions about whether and how a

witness would have testified are usually not enough to establish prejudice from the

failure to interview or call that witness.” McKiver, 991 F.3d at 1365. Acosta-Cortina

presents no evidence — through affidavits or otherwise — that his proposed

witnesses would have testified in the manner he suggests. See United States v. Ashimi,

932 F.2d 643, 650 (7th Cir. 1991) (“[E]vidence about the testimony of a putative

witness must generally be presented in the form of actual testimony by the witness or

an affidavit. A defendant cannot simply state that the testimony would have been

favorable; self-serving speculation will not sustain an ineffective-assistance claim.”).

“Without such a showing, [Acosta-Cortina] cannot demonstrate Strickland

prejudice.” Afshar v. Sec’y, Dep’t of Corr., No. 2:24-cv-826-JES-NPM, 2025 WL

404629, at *5 (M.D. Fla. Feb. 5, 2025) (finding no prejudice from failure to call

witness because petitioner did not “offer[ ] [the witness’s] sworn testimony detailing

what he would have said if deposed or called to testify at trial”); see also Johnson v.

Alabama, 256 F.3d 1156, 1187 (11th Cir. 2001) (“[Petitioner] offers only speculation

that the missing witnesses would have been helpful. This kind of speculation is

insufficient to carry the burden of a habeas corpus petitioner.”).

Ground Four:

Acosta-Cortina faults trial counsel for not objecting when the prosecution

requested a jury instruction on second-degree felony murder as a lesser-included

offense. (Doc. 13 at 21) The operative indictment charged Acosta-Cortina with first-

degree felony murder. (Respondent’s Exhibit 1 at 38) According to Acosta-Cortina,

however, the indictment failed to allege “all the elements” of second-degree felony

murder. (Doc. 13 at 24) Thus, counsel allegedly should have argued that second-

degree felony murder could not be “submi[tted] to the jury for consideration” as a

lesser-included offense. (Doc. 13 at 25)

The post-conviction court rejected this claim. Citing Florida law, the court

explained that a jury may be instructed on “a permissive lesser-included offense

[such as second-degree felony murder] only where (1) thecharging document alleges

all of the statutory elements of the lesser offense and (2) so me evidence presented at

trial establishes each of those elements.” (Respondent’s Exhibit 13 at 468) The court

held that counsel was not deficient because “the charging document allege[d] the

statutory elements of second-degree felony murder and there was some evidence

presented at trial establishing each element” of the offense. (Respondent’s Exhibit 13

at 469)

The indictment alleged that Acosta-Cortina, “while engaged in the

perpetration of . . . aggravated stalking that occurred on or between November 27,

2015, and December 12, 2015, did chase [ ] Gonzalez-Mederos with a motor vehicle,

and as a consequence thereof, [ ] Calderon-Martinez died.” (Respondent’s Exhibit 1

at 38) As the post-conviction court explained, second-degree felony murder has

“four elements”: “(1) the victim is dead; (2) the defendant was not the person who

actually killed the victim, but the defendant did commit a felony; (3) the victim’s

death was caused during and was a consequence of the commission of the felony;

and (4) the person who actually killed the victim was not involved in the commission

of the felony.” (Respondent’s Exhibit 13 at 468) The court found that the

indictment alleged “all of the statutory elements of the lesser offense of second-

degree felony murder” — that “the victim [was] dead, that [Acosta-Cortina] did

commit a felony, and that the victim’s death was caused during and was a

consequence of the commission of the felony.” (Respondent’s Exhibit 13 at 468)

The court acknowledged that the indictment did “not specify whether the victim was

murdered by the person who committed the felony ([Acosta-Cortina]) or by a non-

principal ([Gonzalez-Mederos]).” (Respondent’s Exhibit 13 at 468–69) The court

found, however, that “either [was] possible by the language of the indictment.”

(Respondent’s Exhibit 13 at 469)

Also, the court concluded that “some evidence at trial establish[ed] each of the

elements of second-degree felony murder.” (Respondent’s Exhibit 13 at 469)

Gonzalez-Mederos’s testimony “established the felony of aggravated stalking,”

“[t]he defense stipulated that the victim died,” and the victim’s “death was caused

during and was a consequence of [Acosta-Cortina’s] high-speed car chase (i.e., [his]

aggravatedstalking).” (Respondent’s Exhibit 13 at 469) Moreover, Gonzalez-

Mederos, “ who was driving the vehicle that crashed . . . , was not involved in the

commission of the aggravated stalking.” (Respondent’s Exhibit 13 at 469) Thus,

because any objection to the instruction would have failed, “counsel was not

deficient for acquiescing to the jury being instructed on second-degree felony

murder.” (Respondent’s Exhibit 13 at 469)

This ruling was reasonable. “[A]lthough the issue of ineffective assistance . . .

is one of constitutional dimension,” a court “must defer to the state’s construction of

its own law when the validity of the [ineffective assistance] claim . . . turns on state

law.” Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1295 (11th Cir. 2017). The post-

conviction court found that, as a matter of Florida law, any objection would have

failed because the jury was properly instructed on second-degree felony murder as a

lesser-included offense. (Respondent’s Exhibit 13 at 468–69) Therefore, the post-

conviction court “already has told us how the issue[ ] would have been resolved

under Florida state law had [counsel] done what [Acosta-Cortina] argues he should

have done.” Herring v. Sec’y Dep’t of Corr., 397 F.3d 1338, 1354–55 (11th Cir. 2005).

Because the post-conviction court “authoritatively decided as a matter of

[Florida] law” that any objection to the instruction would have failed, the remainder

of the analysis is straightforward. Calhoun v. Warden, Baldwin State Prison, 92 F.4th

1338, 1351 (11th Cir. 2024). “A lawyer cannot be deficient for failing to raise a

meritless claim.” Freeman v. Atty. Gen., 536 F.3d 1225, 1233 (11th Cir. 2008). As a

result, the post-conviction court reasonably concluded that counsel was not deficient

for failing to raise a meritless objection to the instruction. See Tatara v. Sec’y, Dep’t of

Corr., 849 F. App’x 858, 862–63 (11th Cir. 2021) (deferring to state-court ruling that

“second-degree murder” was properly classified as “a permissive lesser-included

offense of first-degree murder”); Robinson v. Sec’y, Dep’t of Corr., No. 20-10846-D,

2021 WL 831983, at *7 (11th Cir. Jan. 20, 2021) (deferring to state-court

determination that “any objection to reclassification based on an allegedly defective

information, the state’s failure to give pre-trial notice, and the trial evidence would

have been meritless under Florida law”); Holt v. Sec’y, Dep’t of Corr., No. 8:19-cv-

2730-SDM-TGW, 2023 WL 2044771, at *23 (M.D. Fla. Feb. 16, 2023) (“Whether

the indictment alleged sufficient facts to charge a crime is an issue of state law, and a

state court’s determination of state law receives deference in federal court.”).

V. CONCLUSION

Acosta-Cortina’s amended application for the writ of habeas corpus (Doc. 13)

is DENIED. The respondent’s request to dismiss the Attorney General from this

action (Doc. 18 at 2) is GRANTED.5 The clerk must enter a judgment against

Acosta-Cortina and CLOSE this case.

CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Because Acosta-Cortina fails to demonstrate either a substantial showing of

the denial of a constitutional right or that reasonable jurists would debate both the

merits of the grounds and the procedural issues, a certificate of appealability and

5 When prisoners challenge their physical confinement, “the proper respondent is the warden

of the facility where the prisoner is being held, not the Attorney General or some other remote

supervisory official.” Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). Because the proper respondent is

the Secretary of the Florida Department of Corrections, the Florida Attorney General is dismissed

from this case.

leave to appeal in forma pauperis are DENIED. 28 U.S.C. § 2253(c)(2); Slack v.

McDaniel, 529 U.S. 473, 478 (2000). Acosta-Cortina must obtain permission from

the court of appeals to appeal in forma pauperis.

ORDERED in Tampa, Florida, on May 13, 2025.

AMAL WNrrgeleny

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

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