Jakubowski v. Secretary, Florida Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

TRAVIS JAKUBOWSKI,

Petitioner,

v. Case No. 3:22-cv-393-MMH-PDB

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Travis Jakubowski, an inmate of the Florida penal system,

initiated this action through counsel in the United States District Court for

the Northern District of Florida on February 28, 2022, by filing a Petition for

Writ of Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1). The

assigned judge transferred the action to the Middle District of Florida on

April 6, 2022. See Order Accepting and Adopting Report and

Recommendation (Doc. 4). In the Petition, Jakubowski challenges a 2018

state court (Duval County, Florida) judgment of conviction for sexual battery

and burglary with assault or battery. He raises four grounds for relief. See

Petition at 27–49.1 Respondents submitted a memorandum in opposition to

the Petition. See Answer to Petition for Writ of Habeas Corpus (Response;

Doc. 12). They also submitted exhibits. See Docs. 12-1 through 12-20.

Jakubowski did not file a brief in reply, and briefing closed on March 6, 2023.

See Order (Doc. 13). This action is ripe for review.

II. Relevant Procedural History

On September 26, 2017, the State of Florida charged Jakubowski by

second amended information with sexual battery (count one) and burglary

with assault or battery (count two). Doc. 12-3 at 69–70. Jakubowski

proceeded to a trial, and on January 18, 2018, a jury found him guilty of the

two charged offenses. Id. at 126–27. On February 14, 2018, the trial court

sentenced Jakubowski to concurrent thirty-year terms of imprisonment

followed by a term of life on sex offender probation. Id. at 214–21.

On direct appeal, with the benefit of counsel, Jakubowski filed an

initial brief arguing the trial court erred when it: (1) admitted the testimony

of a Williams2 Rule witness, and (2) admitted hearsay statements from the

victim to a nurse. Doc. 12-5 at 1–35. The State filed an answer brief, Doc.

1 For purposes of reference to pleadings and exhibits, the Court will cite the

document page numbers assigned by the Court’s electronic docketing system.

2 Williams v. State, 110 So. 2d 654 (Fla. 1959).

2

12-7 at 1–27, and Jakubowski replied, Doc. 12-8 at 1–7. The First District

Court of Appeal (First DCA) affirmed Jakubowski’s conviction and sentence

in a written opinion on December 31, 2019, Doc. 12-9 at 1–4, and issued the

mandate on January 21, 2020, Doc. 12-10 at 1. Jakubowski subsequently

attempted to invoke the discretionary jurisdiction of the Florida Supreme

Court. Doc. 12-11 at 1–2. On March 30, 2020, the Florida Supreme Court

dismissed Jakubowski’s petition for review based on his failure to timely file

a jurisdictional brief. Doc. 12-12 at 1.

Jakubowski retained postconviction counsel, and on February 12, 2021,

he filed a motion for postconviction relief pursuant to Florida Rule of

Criminal Procedure 3.850. Doc. 12-13 at 4–33. In the Rule 3.850 motion,

Jakubowski alleged counsel was ineffective when she failed to: investigate

and discover impeachment evidence (ground one); investigate, depose, and

call an “exculpatory and/or impeachment witness” (ground two); move for a

mistrial or a Richardson3 hearing (ground three); and ensure that the trial

court gave the limiting instruction on Williams Rule evidence at the time the

State presented the evidence (ground four). Id. The postconviction court

denied relief on all grounds. Id. at 37–56. On December 27, 2021, the First

3 Richardson v. State, 246 So. 2d 771 (Fla. 1971).

3

DCA per curiam affirmed the denial of relief without a written opinion, Doc.

12-16 at 1–2, and on January 13, 2022, it issued the mandate, Doc. 12-17 at

1.

III. One-Year Limitations Period

This action was timely filed within the one-year limitations period. See

28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to

establish the need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla.

Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to

grant an evidentiary hearing, a federal court must consider whether such a

hearing could enable an applicant to prove the petition’s factual allegations,

which, if true, would entitle the applicant to federal habeas relief.” Schriro v.

Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t of Corr., 834

F.3d 1299, 1318–19 (11th Cir. 2016). “It follows that if the record refutes the

applicant’s factual allegations or otherwise precludes habeas relief, a district

court is not required to hold an evidentiary hearing.” Schriro, 550 U.S. at

474. The pertinent facts of this case are fully developed in the record before

the Court. Because the Court can “adequately assess [Jakubowski’s] claim[s]

4

without further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275

(11th Cir. 2003), an evidentiary hearing will not be conducted.

V. Governing Legal Principles

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

governs a state prisoner’s federal petition for habeas corpus. See Ledford v.

Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.

2016), abrogation recognized on other grounds by Smith v. Comm’r, Ala.

Dep’t of Corr., 67 F.4th 1335, 1348 (11th Cir. 2023). “‘The purpose of AEDPA

is to ensure that federal habeas relief functions as a guard against extreme

malfunctions in the state criminal justice systems, and not as a means of

error correction.’” Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)). As

such, federal habeas review of final state court decisions is “greatly

circumscribed and highly deferential.” Id. (internal quotation marks omitted)

(quoting Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011)).

The first task of the federal habeas court is to identify the last state

court decision, if any, that adjudicated the claim on the merits. See Marshall

v. Sec’y, Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state

court need not issue a written opinion explaining its rationale in order for the

5

state court’s decision to qualify as an adjudication on the merits. See

Harrington v. Richter, 562 U.S. 86, 100 (2011). Where the state court’s

adjudication on the merits is unaccompanied by an explanation, the United

States Supreme Court has instructed:

[T]he federal court should “look through” the

unexplained decision to the last related state-court

decision that does provide a relevant rationale. It

should then presume that the unexplained decision

adopted the same reasoning.

Wilson v. Sellers, 584 U.S. 122, 125 (2018). The presumption may be rebutted

by showing that the higher state court’s adjudication most likely relied on

different grounds than the lower state court’s reasoned decision, such as

persuasive alternative grounds that were briefed or argued to the higher

court or obvious in the record it reviewed. Id. at 125–26, 132.

If the claim was “adjudicated on the merits” in state court, § 2254(d)

bars relitigation of the claim unless the state court’s decision (1) “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) “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);

6

Richter, 562 U.S. at 97–98. The Eleventh Circuit describes the limited scope

of federal review pursuant to § 2254 as follows:

First, § 2254(d)(1) provides for federal review for

claims of state courts’ erroneous legal conclusions. As

explained by the Supreme Court in Williams v.

Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d

389 (2000), § 2254(d)(1) consists of two distinct

clauses: a “contrary to” clause and an “unreasonable

application” clause. The “contrary to” clause allows

for relief only “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.” Id.

at 413, 120 S. Ct. at 1523 (plurality opinion). The

“unreasonable application” clause allows for relief

only “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.

Second, § 2254(d)(2) provides for federal review for

claims of state courts’ erroneous factual

determinations. Section 2254(d)(2) allows federal

courts to grant relief only if the state court’s denial of

the petitioner’s claim “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)(2). The Supreme Court has not yet defined §

2254(d)(2)’s “precise relationship” to § 2254(e)(1),

which imposes a burden on the petitioner to rebut the

state court’s factual findings “by clear and convincing

evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S.

Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield

v. Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192

7

L.Ed.2d 356 (2015). Whatever that “precise

relationship” may be, “‘a state-court factual

determination is not unreasonable merely because

the federal habeas court would have reached a

different conclusion in the first instance.’” Titlow, 571

U.S. at ---, 134 S. Ct. at 15 (quoting Wood v. Allen,

558 U.S. 290, 301, 130 S. Ct. 841, 849, 175 L.Ed.2d

738 (2010)).

Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016). Also, deferential

review under § 2254(d) generally is limited to the record that was before the

state court that adjudicated the claim on the merits. See Cullen v. Pinholster,

563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1) “requires an

examination of the state-court decision at the time it was made”).

Thus, “AEDPA erects a formidable barrier to federal habeas relief for

prisoners whose claims have been adjudicated in state court.” Titlow, 571

U.S. at 19. “Federal courts may grant habeas relief only when a state court

blundered in a manner so ‘well understood and comprehended in existing law’

and ‘was so lacking in justification’ that ‘there is no possibility fairminded

jurists could disagree.’” Tharpe, 834 F.3d at 1338 (quoting Richter, 562 U.S.

at 102–03). This standard is “meant to be” a “difficult” one to meet. Richter,

562 U.S. at 102. Thus, to the extent that the petitioner’s claims were

adjudicated on the merits in the state courts, they must be evaluated under

28 U.S.C. § 2254(d).

8

B. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants the effective

assistance of counsel. That right is denied when a defense attorney’s

performance falls below an objective standard of reasonableness and thereby

prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per

curiam) (first citing Wiggins v. Smith, 539 U.S. 510, 521 (2003); and then

Strickland v. Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

reasonableness.” [Strickland,] 466 U.S. at 688, 104 S.

Ct. 2052. A court considering a claim of ineffective

assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range”

of reasonable professional assistance. Id., at 689, 104

S. Ct. 2052. The challenger’s burden is to show “that

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Id., at 687, 104 S. Ct.

2052.

With respect to prejudice, a challenger must

demonstrate “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, 104 S. Ct.

2052. It is not enough “to show that the errors had

some conceivable effect on the outcome of the

proceeding.” Id., at 693, 104 S. Ct. 2052. Counsel’s

errors must be “so serious as to deprive the defendant

9

of a fair trial, a trial whose result is reliable.” Id., at

687, 104 S. Ct. 2052.

Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of

any iron-clad rule requiring a court to tackle one prong of the Strickland test

before the other.” Ward, 592 F.3d at 1163. Since both prongs of the two-part

Strickland test must be satisfied to show a Sixth Amendment violation, “a

court need not address the performance prong if the petitioner cannot meet

the prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley, 209 F.3d

1243, 1248 (11th Cir. 2000)). As stated in Strickland: “If it is easier to dispose

of an ineffectiveness claim on the ground of lack of sufficient prejudice, which

we expect will often be so, that course should be followed.” Strickland, 466

U.S. at 697.

A state court’s adjudication of an ineffectiveness claim is accorded great

deference.

“[T]he standard for judging counsel’s representation

is a most deferential one.” Richter, 562 U.S. at ---,

131 S. Ct. at 788. But “[e]stablishing that a state

court’s application of Strickland was unreasonable

under § 2254(d) is all the more difficult. The

standards created by Strickland and § 2254(d) are

both highly deferential, and when the two apply in

tandem, review is doubly so.” Id. (citations and

quotation marks omitted). “The question is not

whether a federal court believes the state court’s

determination under the Strickland standard was

10

incorrect but whether that determination was

unreasonable — a substantially higher threshold.”

Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S. Ct.

1411, 1420, 173 L.Ed.2d 251 (2009) (quotation marks

omitted). If there is “any reasonable argument that

counsel satisfied Strickland’s deferential standard,”

then a federal court may not disturb a state-court

decision denying the claim. Richter, 562 U.S. at ---,

131 S. Ct. at 788.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009). In other words, “[i]n addition to the

deference to counsel’s performance mandated by Strickland, the AEDPA adds

another layer of deference—this one to a state court’s decision—when we are

considering whether to grant federal habeas relief from a state court’s

decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As

such, “[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. 356, 371 (2010).

VI. Findings of Fact and Conclusions of Law

A. Ground One

In Ground One, Jakubowski argues that counsel was ineffective when

she failed to investigate and discover impeachment evidence that would have

shown the victim—B.Z.—lied to the jury. See Petition at 27. He asserts that

counsel “could have used [B.Z.’s] cell phone records as evidence to impeach

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B.Z. on cross-examination after she testified before the jury that she called

[Dina Del] Carmen-Varela to inquire about [] furniture, when in fact the

records indicate that no such call was ever made.” Id. at 30.

The record reflects that during trial, B.Z. testified she was at

Carmen-Varela’s residence babysitting Carmen-Varela’s son on the morning

of the offense. Doc. 12-4 at 164–65. According to B.Z., Jakubowski knocked on

the door of the residence to inquire about buying furniture that Carmen-

Varela had placed at the curb. Id. at 166. B.Z. testified that she called

Carmen-Varela, who told her that Jakubowski could take the furniture. Id. at

167.

During her deposition, B.Z. testified that Jakubowski knocked on the

door at approximately 8:00 a.m. See Petition at 28. The 911 call reporting the

offense was initiated at 11:13 a.m. See id. However, Jakubowski asserts that

B.Z.’s cellphone records show that she did not make any outgoing calls during

that time period. See id. Moreover, Carmen-Varela provided a statement to

law enforcement, but she failed to give “any indication that she received a

mid-morning call from B.Z. regarding a stranger inquiring about her

furniture.” Id. at 29. According to Jakubowski, “[t]he absence of any outgoing

calls during the relevant time period on B.Z.’s call log, coupled with []

12

Carmen-Varela’s scant statement to law enforcement, . . . means B.Z. lied to

the jury . . . .” Id.

Jakubowski raised a substantially similar claim in his Rule 3.850

motion. Doc. 12-13 at 15–20. The postconviction court denied relief, stating in

pertinent part:

“Generally, impeachment on a collateral issue

is impermissible.” Foster v. State, 869 So. 2d 743, 745

(Fla. 2d DCA 2004). A matter is collateral or

irrelevant when it cannot be admitted for any

purpose other than simply contradicting a witness.

Id. Two types of evidence pass this test: (1) facts

relevant to a material issue in the case and (2) facts

which discredit a witness specifically by pointing out

the witness’ bias, corruption, or lack of competency.

Id.; see also Lawson v. State, 651 So. 2d 713, 715

(Fla. 2d DCA 1995) (“The test of relevancy and

materiality is whether the cross-examining party

could have, for any purpose other than impeachment,

introduced evidence on the subject in its case in

chief.”). For example, in a sexual battery case,

evidence that contradicts the victim’s testimony

about what clothes she was wearing at the time the

defendant attacked her is collateral and therefore

inadmissible. See Anderson v. State, 133 So. 3d 646,

647 (Fla. 1st DCA 2014) (“This line of questioning

was an attempt to impeach the victim on a collateral

matter because defense counsel was seeking only to

contradict the victim’s assertion that she was

wearing jogging clothes, rather than pajamas. This

evidence was not relevant to any issue in the case as

it did not reflect on Anderson’s guilt or innocence.

Moreover, the victim’s alleged false characterization

13

of her clothing did not show bias, corruption, or lack

of competency as a witness.”).

Here, whether [B.Z.] called Ms. Carmen-Varela

on the phone is not material to the issue of whether

Defendant sexually battered [B.Z.] Indeed, [B.Z.]

testified that the sole purpose of the phone call was to

ask whether Ms. Carmen-Varela had any objections

to the man at the door carrying off her used

furniture. Obviously, the phone call did not relay any

details of the attack because, as [B.Z.] testified, the

attack had yet to occur. Moreover, Defendant’s

presence in the community on the morning of April

17th is not in dispute. [B.Z.,] Walkeria Candeids, and

Jocenildo Suave all testified about their encounters

with Defendant during the morning hours of April

17th. Defendant also admitted to Detective [William

Randolph] that he was in the community between

9:00 and 10:00 AM. Thus, it is not as if the State

relied on the phone call between [B.Z.] and Mrs.

Carmen-Varela to place Defendant at the crime

scene.

Instead, the only purpose of the Defense

presenting [B.Z.’s] cell phone records to prove the

absence of a phone call would be to diminish her

credibility generally. Defendant’s motion underscores

this point when it asks, “If [B.Z.] lied about placing

the call regarding the furniture to Ms. Carmen-

Varela, what else was she being untruthful about?”

Defense Counsel would not have been able to offer

[B.Z.’s] phone records to impeach her on a collateral

matter. See Foster, 869 So. 2d at 745; Lawson, 651

So. 2d at 715; Anderson, 133 So. 3d at 647. And

Defense Counsel was not ineffective for failing to

present inadmissible records.

Furthermore, Defendant characterizes this

matter as a purely “he said, she said” case. As the

14

trial summary reflects, that is simply not true. In

light of the full body of evidence, there is no

reasonable probability the ultimate outcome of

Defendant’s trial would have changed if only Defense

Counsel had presented [B.Z.’s] cell phone records. As

such, Defendant cannot satisfy the prejudice prong of

Strickland and his claim for relief fails on the merits.

Doc. 12-13 at 45–47 (record citations omitted). The First DCA per curiam

affirmed the postconviction court’s order without a written opinion. Doc.

12-16 at 1–2.

To the extent that the First DCA decided this claim on the merits,4 the

Court applies the deferential standard for federal court review of state court

adjudications. After a review of the record and the applicable law, the Court

concludes that the state court’s adjudication of this claim was not contrary to

clearly established federal law, did not involve an unreasonable application of

clearly established federal law, and was not based on an unreasonable

determination of the facts in light of the evidence presented in the state court

proceedings.

When an ineffectiveness claim involves a question of state law, a

federal habeas court must defer to the state court’s construction of its own

4 Throughout this Order, in looking through the appellate court’s per curiam

affirmance to the circuit court’s “relevant rationale,” the Court presumes that the

appellate court “adopted the same reasoning.” Wilson, 584 U.S. at 125.

15

law. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (emphasizing that “it

is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions”). In other words, if Florida courts

“already ha[ve] told us how the issues would have been resolved under

Florida state law had [counsel] done what [petitioner] argues he should have

done,” then “federal habeas courts should not second-guess [the state courts]

on such matters.” Herring v. Sec’y, Dep’t of Corrs., 397 F.3d 1338, 1354–55

(11th Cir. 2005) (quotation marks omitted).

Here, the postconviction court determined that whether B.Z. contacted

Carmen-Varela was a collateral matter that could not serve as a basis for

impeachment under Florida’s rules of evidence and procedure. The Court is

bound by the postconviction court’s interpretation of Florida law. See id. As

such, counsel did not perform deficiently when she failed to impeach B.Z.

with extrinsic evidence of the collateral matter. Therefore, relief on the claim

in Ground One is due to be denied.

B. Ground Two

Next, Jakubowski alleges counsel was ineffective when she failed to

investigate, depose, and call Carmen-Varela as an “exculpatory and/or

impeachment witness.” Petition at 33. As noted above, B.Z. testified at trial

16

that Jakubowski knocked on the door of Carmen-Varela’s residence to inquire

about taking furniture on the curb. Doc. 12-4 at 166. B.Z. stated she

contacted Carmen-Varela, who instructed her to “go ahead and let

[Jakubowski] through, he always comes by the neighborhood collecting the

furniture.” Id. at 167. According to Jakubowski, he “has never collected

furniture from [that neighborhood] and has never met [] Carmen-Varela. Yet,

[] Carmen-Varela was familiar with a man who routinely collects furniture

from around the neighborhood. [] Carmen-Varela thus identified an

individual who [Jakubowski] could have been mistaken for and who was

likely the actual assailant.” Petition at 35.

Jakubowski raised a substantially similar claim in his Rule 3.850

motion. Doc. 12-13 at 21–24. The postconviction court denied relief, stating in

pertinent part:

The trial court conducted a sworn colloquy with

Defendant. Inter alia, the court asked Defendant

whether he had conferred with Defense Counsel

about which witnesses they would present at trial.

Defendant answered affirmatively. The court also

asked Defendant whether he was on board with the

witnesses Defense Counsel would be calling.

Defendant again answered affirmatively. Accepting

the claims contained in Ground Two of Defendant’s

motion requires discounting his sworn assertions to

the trial court. Defendant may not obtain

postconviction relief in that manner. See Kelley v.

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State, 109 So. 3d 811, 812-13 (Fla. 1st DCA 2013) (“A

rule 3.850 motion cannot be used to go behind

representations the defendant made to the trial

court, and the court may summarily deny post-

conviction claims that are refuted by such

representations.”); Henry v. State, 920 So. 2d 1245,

1246 (Fla. 5th DCA 2006) (“Defendants are bound by

the statements made by them under oath . . . .”).

Because it is belied by the record, Ground Two of

Defendant’s motion does not warrant postconviction

relief.

Additionally, as the Court explained in its

discussion of Ground One, the question of whether

[B.Z.] spoke with Ms. Carmen-Varela on the phone

was not a material issue at trial. Defendant does not

dispute that he was in the community on the morning

of April 17, 2017 (indeed, he conceded this point

during his interview with Detective [Randolph]). The

disputed issue at trial was whether Defendant

attacked and sexually battered [B.Z.] The existence

vel non of a pre-attack phone call between [B.Z.] and

Ms. Carmen-Varela is not a material issue that could

have swayed the result of Defendant’s trial. Stated

differently, there is no reasonable probability that

Ms. Carmen-Varela’s testimony concerning whether

[B.Z.] called her on the phone before the attack would

have changed the jury’s verdicts. And in the absence

of that reasonable probability, Defendant cannot

demonstrate the prejudice that Strickland requires.

Defendant’s claim concerning Ms. Carmen-

Varela’s alleged knowledge of a man who previously

collected discarded furniture from the community

also fails. The relevant portion of the trial transcript

reads:

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A [B.Z.]: He, um, knocked on the door,

and I could see through the glass on the

door, and he was pointing me to the

furniture and was doing the dollar sign, if

I wanted money.

Q [the State]: Did you communicate with

anyone to find out if he could have the

furniture?

A: Yes.

Q: And who was that?

A: I contacted the lady of the household,

because the day prior she had changed

her home furniture.

Q: Did you ever open the door?

A: Um, after speaking to the household

lady, she instructed me, yeah, go ahead

and let him through, he always comes by

the neighborhood collecting the furniture.

Q: This particular person, or just people

in general?

A: No, him.

[B.Z.’s] testimony was that she called Ms.

Carmen-Varela on the phone only to verify whether

the man at the door could carry off Ms. Carmen-

Varela’s discarded furniture. Ms. Carmen-Varela

indicated the man could do so and her conversation

with [B.Z.] suggests that a man had come through

the community on previous occasions to collect

furniture. However, Ms. Carmen-Varela obviously

19

did not see the man who was standing at the door on

the morning of April 17th. [B.Z.] did not describe the

man to Ms. Carmen-Varela over the phone. Instead,

she merely indicated that a man was at the residence

inquiring about the discarded furniture’s availability.

Thus, even if another man had really come through

the neighborhood on previous occasions to collect

unwanted furniture and even if Ms. Carmen-Varela

was aware of such a man’s existence, her phone

conversation with [B.Z.] is not evidence that it was

that man—rather than Defendant—who battered

[B.Z.] At most, the portion of the testimony at issue

establishes that Ms. Carmen-Varela assumed the

person standing on her front step was someone who

had previously picked-up used furniture in the

community.

Simply put, this portion of [B.Z.’s] testimony is

not the exonerating revelation that Defendant

believes it is. Three eyewitnesses placed Defendant at

or near the crime scene in the relevant time frame.

Defendant admitted to being in the community on the

morning of the attack. [B.Z.] identified Defendant as

her attacker in a police photo lineup and again at

trial. A photograph of Defendant that police took

shortly after April 17th showed Defendant with a

wound on his hands. DNA testing “clearly” showed

“some DNA that was consistent with Mr. Jakubowski

on one of the [victim’s] fingernail scrapings.” And a

Williams Rule witness testified that Defendant

attacked her under highly similar circumstances,

suggesting a common scheme or plan on Defendant’s

part. See Jakubowski, 286 So. 3d at 957.[5] In light of

the full body of evidence, there is no reasonable

probability the jury would have reached a different

result if only Defense Counsel had called Ms.

5 Jakubowski v. State, 286 So. 3d 955 (Fla. 1st DCA 2019).

20

Carmen-Varela to testify about whether she indeed

was aware of a man who previously collected used

furniture in the community.

For the reasons set forth above, the Court

denies Ground Two of Defendant’s motion.

Doc. 12-13 at 48–50 (record citations omitted). The First DCA per curiam

affirmed the postconviction court’s order without a written opinion. Doc. 12-

16 at 1–2.

To the extent that the First DCA decided this claim on the merits, the

Court applies the deferential standard for federal court review of state court

adjudications. After a review of the record and the applicable law, the Court

concludes that the state court’s adjudication of this claim was not contrary to

clearly established federal law, did not involve an unreasonable application of

clearly established federal law, and was not based on an unreasonable

determination of the facts in light of the evidence presented in the state court

proceedings. Therefore, Jakubowski is not entitled to relief on the basis of

this claim.

Nevertheless, even if the state appellate court’s adjudication of the

claim is not entitled to deference, the ineffectiveness claim is without merit

because Jakubowski fails to establish prejudice. Jakubowski admitted he was

in the neighborhood between 9:00 a.m. and 10:00 a.m. on the day of the

21

offense. Doc. 12-4 at 239. Two residents confirmed his presence in the

neighborhood as early as 8:00 a.m., id. at 196–97, 229–30, 233, and B.Z.

identified Jakubowski as her assailant in the courtroom and in a

photospread, id. at 166, 179–80.

In contrast, Carmen-Varela was not present on the day of the incident.

And she merely assumed that the man inquiring about the furniture was the

same man who frequented the neighborhood. As such, Carmen-Varela’s

testimony would have been largely inconsequential to the issue of identity.

Therefore, even if counsel had investigated, deposed, and called

Carmen-Varela as a witness, no reasonable probability exists that the

outcome of trial would have been different. Based on the above, Jakubowski

is not entitled to federal habeas relief on the claim in Ground Two.

C. Ground Three

In Ground Three, Jakubowski argues that counsel was ineffective when

she failed to move for a mistrial or a Richardson hearing. See Petition at 39.

According to Jakubowski, the “crucial fact—that [] Carmen-Varela knew and

was familiar with the man whom B.Z. alleged sexually battered her—was

never previously disclosed to the defense.” Id. at 40.

22

Jakubowski raised a substantially similar claim in his Rule 3.850

motion. Doc. 12-13 at 25–29. The postconviction court denied relief, stating:

Here, the predicate for Ground Three of

Defendant’s motion is his allegation that [B.Z.]

changed her version of events mid-trial. Defendant

cites the same portion of the trial transcript that he

highlighted in Ground Two of his motion:

A [B.Z.]: He, um, knocked on the door,

and I could see through the glass on the

door, and he was pointing me to the

furniture and was doing the dollar sign, if

I wanted money.

Q [the State]: Did you communicate with

anyone to find out if he could have the

furniture?

A: Yes.

Q: And who was that?

A: I contacted the lady of the household,

because the day prior she had changed

her home furniture.

Q: Did you ever open the door?

A: Um, after speaking to the household

lady, she instructed me, yeah, go ahead

and let him through, he always comes by

the neighborhood collecting the furniture.

Q: This particular person, or just people

in general?

23

A: No, him.

Defendant argues this was the first time [B.Z.]

ever noted that “the lady of the household” (i.e., Ms.

Carmen-Varela) “knew and was familiar with the

man whom [B.Z.] alleged sexually battered her.” He

avers that Defense Counsel’s “preparation and/or

trial strategy would have been materially different

had the fact that Ms. Carmen-Varela allegedly knew

the individual collecting furniture properly been

disclosed.”

To secure a mistrial based on [B.Z.’s] testimony

allegedly containing new, unanticipated information,

Defense Counsel would have needed to show the

revelation was “so prejudicial as to vitiate the entire

trial.” See Duest, 462 So. 2d at 448.[6] And to prevail

at a Richardson hearing, Defense Counsel would

have needed to show that the State suppressed

evidence that prejudiced Defendant’s ability to

prepare for trial. See Sinclair, 657 So. 2d 1140.[7]

Again, Defendant’s presence in the

neighborhood on the morning of the crime is not in

dispute. [B.Z.,] Walkeria Candeids, and Jocenildo

Suave all testified about their encounters with

Defendant during the morning hours of April 17th.

Defendant also admitted to Detective [Randolph] that

he was in the community between 9:00 and 10:00

AM. As set forth in the Court’s discussion of Ground

Two, Ms. Carmen-Varela being aware that a man

collected discarded furniture from the community on

previous occasions is not evidence that had any

material bearing on the outcome of Defendant’s trial.

Contrary to what Defendant alleges, [B.Z.’s]

6 Duest v. State, 462 So. 2d 446 (Fla. 1985).

7 Sinclair v. State, 657 So. 2d 1138 (Fla. 1995).

24

testimony does not establish that Ms. Carmen-Varela

“knew and was familiar with the man” who sexually

battered [B.Z.”] At most, the testimony shows that

Ms. Carmen-Varela was generally aware that a man

had previously collected discarded furniture in the

community and that she assumed the man [B.Z.]

referenced on the phone may have been this man.

Because there is no reasonable probability the

trial court would have actually granted a mistrial or

ruled in favor of Defendant at a Richardson hearing,

the Court denies Ground Three of Defendant’s

motion. See Whitted v. State, 992 So. 2d 352, 353

(Fla. 4th DCA 2008) (“Counsel was not ineffective for

failing to file a motion sure to be denied.”).

Doc. 12-13 at 51–53 (record citations omitted). The First DCA per curiam

affirmed the postconviction court’s order without a written opinion. Doc. 12-

16 at 1–2.

To the extent that the First DCA decided this claim on the merits, the

Court applies the deferential standard for federal court review of state court

adjudications. After a review of the record and the applicable law, the Court

concludes that the state court’s adjudication of this claim was not contrary to

clearly established federal law, did not involve an unreasonable application of

clearly established federal law, and was not based on an unreasonable

determination of the facts in light of the evidence presented in the state court

proceedings.

25

Jakubowski’s ineffectiveness claim turns on a question of Florida law—

whether a Richardson violation occurred or grounds for a mistrial existed

when B.Z. testified at trial for the first time that Carmen-Varela knew a man

who collected furniture in the neighborhood. And the postconviction court

determined that the trial court would have denied such motions. The Court is

bound by the postconviction court’s interpretation of state law. See Hooker v.

Sec’y, Dep’t of Corr., No. 8:20-CV-549-TPB-JSS, 2022 WL 17572775, at *2

(M.D. Fla. Nov. 1, 2022)8 (“Because the ineffective assistance of counsel claim

turns on a question of state law, this Court defers to the post-conviction

court’s determination that under state law the trial court would have

overruled any further objection and would have denied a motion for

mistrial.”); Huddleston v. Sec’y, Dep’t of Corr., No. 8:16-CV-76-T-02AAS, 2019

WL 339225, at *5 (M.D. Fla. Jan. 28, 2019) (“[W]hether counsel should have

objected and moved for a Richardson hearing is a question of state law. The

state court’s denial of this claim is dispositive of the underlying state law

issue, and ultimately binds this Court.”). Accordingly, counsel did not

8 The Court notes that although decisions of other district courts are not

binding, they too may be cited as persuasive authority. See Stone v. First Union

Corp., 371 F.3d 1305, 1310 (11th Cir. 2004) (noting that, “[a]lthough a district court

would not be bound to follow any other district court’s determination, the decision

would have significant persuasive effects.”).

26

perform deficiently when she failed to move for a mistrial or request a

Richardson hearing. As such, relief on the claim in Ground Three is due to be

denied.

D. Ground Four

Last, Jakubowski asserts that counsel was ineffective when she failed

to ensure that the trial court gave the limiting instruction on Williams Rule

evidence at the time the State presented the evidence. See Petition at 45.

Jakubowski raised a substantially similar claim in his Rule 3.850 motion.

Doc. 12-13 at 29–32. The postconviction court denied relief, stating in

pertinent part:

It is a “well-established presumption” that a

jury follows the trial court’s instructions. R.J.

Reynolds Tobacco Co. v. Thomas, 264 So. 3d 199, 202

(Fla. 4th DCA 2019) (quoting Philip Mor[r]is USA

Inc. v. Martin, 262 So. 3d 769, 777-78 (Fla. 4th DCA

2018)). Here, it is undisputed that the trial court

correctly instructed the jury about the proper role of

Williams Rule evidence. Jakubowski, 286 So. 3d at

957. Defendant cannot demonstrate that the jury

disregarded the trial court’s correct Williams Rule

instruction merely because the court gave it as part

of the final jury charge rather than as a special,

stand-alone instruction during trial. And in the

absence of that showing, Ground Four fails to

establish the prejudice that Strickland requires.

Accordingly, the Court denies Ground Four of

Defendant’s motion.

27

Doc. 12-13 at 54 (record citation omitted). The First DCA per curiam affirmed

the postconviction court’s order without a written opinion. Doc. 12-16 at 1–2.

To the extent that the First DCA decided this claim on the merits, the

Court applies the deferential standard for federal court review of state court

adjudications. After a review of the record and the applicable law, the Court

concludes that the state court’s adjudication of this claim was not contrary to

clearly established federal law, did not involve an unreasonable application of

clearly established federal law, and was not based on an unreasonable

determination of the facts in light of the evidence presented in the state court

proceedings.

Although the trial court did not instruct the jury on other crimes

evidence immediately prior to the Williams Rule witness’s testimony, the

State referenced the evidence in its opening statement and advised the jury

that the Williams Rule witness would testify about a similar incident that

Jakubowski is “not on trial for.” Doc. 12-4 at 140. Moreover, after closing

arguments, the trial court instructed the jury on Florida Standard Jury

Instruction 3.8(a) regarding Williams Rule evidence, which advised that

Jakubowski cannot be convicted of a crime not included in the Information.

Id. at 390. Therefore, the jury received the proper instruction before

28

deliberations. Jakubowski cannot demonstrate that but for counsel’s failure

to request that the instruction be read earlier, the outcome of trial would

have been different. As such, he is not entitled to federal habeas relief on the

claim in Ground Four.

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Jakubowski seeks issuance of a certificate of appealability, the

undersigned opines that a certificate of appealability is not warranted. The

Court should issue a certificate of appealability only if the petitioner makes

“a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make this substantial showing, Jakubowski “must demonstrate

that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274,

282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the

issues presented were ‘adequate to deserve encouragement to proceed

further,’” Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003) (quoting Barefoot

v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

Where a district court has rejected a petitioner’s constitutional claims

on the merits, the petitioner must demonstrate that reasonable jurists would

find the district court’s assessment of the constitutional claims debatable or

29

wrong. See Slack, 529 U.S. at 484. However, when the district court has

rejected a claim on procedural grounds, the petitioner must show that “jurists

of reason would find it debatable whether the petition states a valid claim of

the denial of a constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.” Id.

Upon consideration of the record as a whole, the Court will deny a certificate

of appealability.

Therefore, it is now ORDERED:

1. The Petition (Doc. 1) is DENIED, and this action is DISMISSED

WITH PREJUDICE.

2. The Clerk of the Court shall enter judgment denying the Petition

and dismissing this case with prejudice.

3. If Jakubowski appeals the denial of the Petition, the Court denies

a certificate of appealability. Because the Court has determined that a

certificate of appealability is not warranted, the Clerk shall terminate from

the pending motions report any motion to proceed on appeal as a pauper that

may be filed in this case. Such termination shall serve as a denial of the

motion.

30

4, The Clerk of the Court is directed to close this case and terminate

any pending motions.

DONE AND ORDERED at Jacksonville, Florida, this 30th day of

July, 2025.

MARCIA MORALES HOWARD

United States District Judge

Jax-9 7/2

Cc: Counsel of record

31