Gonzalez-Garcia

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DIEGO GONZALEZ-GARCIA,

Petitioner,

v. Case No. 8:23-cv-397-TPB-CPT

SECRETARY, FLORIDA DEPARTMENT

OF CORRECTIONS,

Respondent.

____________________________________

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner Diego Gonzalez-Garcia, a prisoner of the Florida Department

of Corrections, files a pro se petition for a writ of habeas corpus under 28 U.S.C.

§ 2254. Gonzalez-Garcia claims counsel rendered constitutionally ineffective

assistance and that his constitutional rights were violated during his jury trial.

Respondent, Secretary of the Florida Department of Corrections, responds that

Gonzalez-Garcia’s claims are procedurally defaulted and meritless. Gonzalez-

Garcia files a reply. Upon consideration of the petition (Doc. 1), the response

in opposition (Doc. 7), and the reply (Doc. 15), the Court denies the petition.

I. Background

This case involves Gonzalez-Garcia’s sexual abuse of his minor

stepdaughter over a period of several years. In denying Gonzalez-Garcia’s

motion for postconviction relief, the state court summarized the facts (Doc. 7-2

at 1363–64):

The charged acts occurred in Florida but were part of

a larger pattern of abuse that also occurred in

[Gonzalez-Garcia’s and the victim’s] native country of

Colombia. As part of the investigation, law

enforcement had the victim make a controlled phone

call to Defendant. Defendant made a number of

substantially incriminating statements during this

conversation, all but directly admitting to having a

sexual relationship with the victim. The victim asked

him various questions including “why did you do what

you did,” “why did you get involved with me,” and “why

did you take a girl who is eleven or twelve years old

. . . and practically sexually abused me?” Defendant

responded that it was not planned, he did not do it on

purpose, and he did it because he felt a lot of affection

for her. He stated that he had a lot of strong feelings

for her as a father, then things started changing. He

said that he has never been involved with someone

younger than himself before, and that “this simply got

out of hand.” He stated that “it was different” and he

felt calm “once [she] became of legal age.” Defendant

told her that he currently did not have a “woman” or

“a girlfriend” because he was “never going to love

anyone the way [he] loved [her].” He said “if I were

like you say, I would be with another little girl your

age but it’s not like that because I am not with

anybody” and he was “not looking for little girls your

age to do that.”

Gonzalez-Garcia was charged in a Fourth Amended Information with

two counts of sexual battery on a child under twelve years of age by a person

eighteen years of age or older (Counts One and Two), four counts of sexual

battery on a person twelve years of age or older by a person in familial or

custodial authority (Counts Three through Six), and two counts of lewd or

lascivious molestation (Counts Seven and Eight). (Doc. 7-2 at 202–06) He

pleaded not guilty and proceeded to trial.

After a three-day day jury trial, Gonzalez-Garcia was found guilty as

charged on Counts One, Three, Four, and Seven. (Id. at 1170) He was found

not guilty on Count Five. (Id.) The court granted a judgment of acquittal on

Counts Two, Six, and Eight. (Id. at 631–32)

On January 4, 2017, Gonzalez-Garcia was sentenced to consecutive

terms of life imprisonment on Count One, thirty years in prison on Counts

Three and Four, and fifteen years in prison on Count Seven. (Id. at 1173–77)

The state appellate court affirmed his convictions and sentence without an

opinion. (Id. at 1266); Gonzalez-Garcia v. State, 256 So. 3d 160 (Fla. 2d DCA

2018).

Gonzalez-Garcia filed a motion for postconviction relief under Florida

Rule of Criminal Procedure 3.850. (Id. at 1269–1343) He subsequently filed

three amended Rule 3.850 motions. (Id. at 1269–1360 and 1576–1622) The

state court denied the motions. (Id. at 1362–1374 and 1624–28) Gonzalez-

Garcia appealed, and the state appellate court affirmed without a written

opinion. (Id. at 1674–75); Gonzalez-Garcia v. State, 334 So. 3d 313 (Fla. 2d

DCA 2022).

Gonzalez-Garcia filed in the state appellate court a petition for writ of

habeas corpus in which he alleged appellate counsel was constitutionally

ineffective. (Id. at 1680–94) The petition was denied without an opinion. (Id.

at 1695–96)

Gonzalez-Garcia timely initiated this action by filing this federal habeas

petition. (Doc. 1) He raises five grounds for relief. In Grounds One and Two,

he raises related claims that counsel was ineffective for not calling Colombian

witnesses to support his defensive strategy (Ground One) and that his

constitutional rights were violated when those witnesses were not called at

trial (Ground Two). In Ground Three, he claims that counsel was ineffective

for not calling to testify a Colombian physician who treated the victim. In

Ground Four, he claims that his constitutional rights were violated when

evidence of other crimes he committed in Colombia was admitted at trial. In

Ground Five, he claims that the cumulative errors of the state court and

counsel deprived him a fair trial.

II. Standards of Review

A. 28 U.S.C. § 2254 Standard

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

governs this proceeding. Carroll v. Sec’y, Fla. Dep’t of Corr., 574 F.3d 1354,

1364 (11th Cir. 2009). Habeas relief under AEDPA can be granted only if a

petitioner is in custody “in violation of the Constitution or laws or treaties of

the United States.” 28 U.S.C. § 2254(a). “The power of the federal courts to

grant a writ of habeas corpus setting aside a state prisoner’s conviction on a

claim that his conviction was obtained in violation of the United States

Constitution is strictly circumscribed.” Green v. Sec’y, Fla. Dep’t of Corr., 28

F.4th 1089, 1093 (11th Cir. 2022).

Section 2254(d) provides that federal habeas relief cannot be granted on

a claim adjudicated on the merits in state court unless the state court’s

adjudication:

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

For purposes of § 2254(d)(1), the phrase “clearly established Federal law”

encompasses the holdings only of the United States Supreme Court “as of the

time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362,

412 (2000). This section “defines two categories of cases in which a state

prisoner may obtain federal habeas relief with respect to a claim adjudicated

on the merits in state court.” Id. at 404. First, a decision is “contrary to” clearly

established federal law “if the state court arrives at a conclusion opposite to

that reached by [the Supreme] Court on a question of law or if the state court

decides a case differently than [the Supreme] Court has on a set of materially

indistinguishable facts.” Id. at 413. Second, a decision involves an

“unreasonable application” of clearly established federal law “if the state court

identifies the correct governing legal principle from [the Supreme] Court’s

decisions but unreasonably applies that principle to the facts of the prisoner’s

case.” Id.

AEDPA was meant “to prevent federal habeas ‘retrials’ and to ensure

that state-court convictions are given effect to the extent possible under the

law.” Bell v. Cone, 535 U.S. 685, 693 (2002). Accordingly, “[t]he focus . . . is on

whether the state court’s application of clearly established federal law is

objectively unreasonable, and . . . an unreasonable application is different from

an incorrect one.” Id. at 694. As a result, to obtain relief under AEDPA, “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 also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (stating that “[t]he state

court’s application of clearly established federal law must be objectively

unreasonable” for a federal habeas petitioner to prevail and that the state

court’s “clear error” is insufficient).

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, 584 U.S. 122, 125 (2018). But the habeas court is “not limited by the

particular justifications the state court provided for its reasons, and [it] may

consider additional rationales that support the state court’s determination.”

Jennings v. Sec’y, Fla. Dep’t of Corr., 55 F.4th 1277, 1292 (11th Cir. 2022).

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

decision—such as summary affirmance without discussion—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, 584 U.S. at 125.

The state may “rebut the presumption by showing that the unexplained

affirmance relied or most likely did rely on different grounds than the lower

state court’s decision.” Id.

For purposes of § 2254(d)(2), “it is not enough to show that ‘reasonable

minds reviewing the record might disagree about the finding in question.’”

Brown v. Davenport, 142 S. Ct. 1510, 1525 (2022) (quotations omitted). “An

unreasonable determination of the facts occurs when the direction of the

evidence, viewed cumulatively, was too powerful to conclude anything but the

petitioner’s factual claim[.]” Teasley v. Warden, Macon State Prison, 978 F.3d

1349, 1355 (11th Cir. 2020) (quotation omitted). A state court’s findings of fact

are presumed correct, and a petitioner can rebut the presumption of

correctness afforded to a state court’s factual findings only by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1).

Even where a petitioner succeeds in rebutting the presumption, he must

show that the state court’s decision is “based on” the incorrect factual

determination. Pye v. Warden, Ga. Diagnostic Prison, 50 F.4th 1025, 1035

(11th Cir. 2022). This is because a state court decision may still be reasonable

“even if some of the state court’s individual factual findings were erroneous—

so long as the decision, taken as a whole, doesn’t constitute an ‘unreasonable

determination of the facts’ and isn’t ‘based on’ any such determination.” Id.

(quoting Hayes v. Sec’y, Fla. Dep’t of Corr., 10 F.4th 1203, 1224–25 (11th Cir.

2021) (Newsom, J., concurring)).

B. Ineffective Assistance of Counsel Standard

To succeed under the well-known, two-part standard articulated in

Strickland v. Washington, 466 U.S. 668 (1984), the petitioner must show both

deficient performance by his counsel and prejudice resulting from those errors.

Id. at 687.

The first part “requires showing that counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment.” Id. The lynchpin of this analysis is whether counsel’s

conduct “was reasonable considering all the circumstances.” Id. at 688. A

petitioner establishes deficient performance if “the identified acts or omissions

[of counsel] were outside the wide range of professionally competent

assistance.” Id. at 690. A court “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.” Id. “[C]ounsel is strongly presumed to have rendered

adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment.” Id.

The second part requires showing that the deficient performance

prejudiced the defense. Id. at 687. “An error by counsel, even if professionally

unreasonable, does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment.” Id. at 691. To

demonstrate prejudice, a petitioner must show “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. at 694.

“The question [on federal habeas review of an ineffective assistance

claim] ‘is not whether a federal court believes the state court’s determination’

under the Strickland standard ‘was incorrect but whether that determination

was unreasonable—a substantially higher threshold.’” Knowles v. Mirzayance,

556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473

(2007)). Consequently, federal petitioners rarely prevail on claims of

ineffective assistance of counsel 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 (quotation and citations omitted).

C. Exhaustion and Procedural Default

A petitioner must exhaust the remedies available in state court before a

federal court can grant relief on federal habeas. 28 U.S.C. § 2254(b)(1)(A). The

petitioner must (1) alert the state court to the federal nature of his claim and

(2) give the state court one full opportunity to resolve the federal claim by

invoking one complete round of the state’s established appellate review

process. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Picard v. Connor,

404 U.S. 270, 278 (1971). The state court must have the first opportunity to

review and correct any alleged violation of a federal right. Baldwin v. Reese,

541 U.S. 27, 29 (2004).

A federal court may stay—or dismiss without prejudice—a habeas case

to allow a petitioner to return to state court to exhaust a claim. Rhines v.

Weber, 544 U.S. 269 (2005); Rose v. Lundy, 455 U.S. 509 (1982). If the state

court would deny the claim as procedurally barred under state law, the federal

court instead denies the claim as procedurally defaulted. Snowden v.

Singletary, 135 F.3d 732, 736 (11th Cir. 1998) (citing Coleman v. Thompson,

501 U.S. 722, 735 n.1 (1991)).

To excuse a procedural bar on federal habeas, a petitioner must

demonstrate either (1) cause for the default and actual prejudice from the

alleged violation of federal law or (2) a miscarriage of justice. Maples v.

Thomas, 565 U.S. 266, 280 (2012); House v. Bell, 547 U.S. 518, 536–37 (2006).

III. Discussion

A. Ground One

Gonzalez-Garcia claims that trial counsel was constitutionally

ineffective for not deposing or calling to testify witnesses from Colombia who

would have supported his defensive strategy that the victim fabricated her

testimony. He asserts that two of the eight witnesses would have testified that

they heard the victim say that she was going to retaliate against him because

he told her mother that she was using drugs. Gonzalez-Garcia notified counsel

that these witnesses were available for depositions, but counsel neglected to

contact them thereby prejudicing his defense. (Doc. 1 at 6–7; Doc. 15 at 1–5)

Gonzalez-Garcia files affidavits from nine witnesses in support of this

claim. (Doc. 1-1 at 1–36) Two witnesses—Gonzalez-Garcia’s brother and

father—attest that the victim threatened to retaliate against him for telling

her mother that she was using drugs with her boyfriend. The remaining

witnesses attest to Gonzalez-Garcia’s good character and to the victim’s drug

usage but are silent as to whether and how the victim threatened to retaliate.

Gonzalez-Gacia previously raised this claim in ground one of his state

postconviction motion and third amended state postconviction motion, as well

as in his appeal from the denial of postconviction relief. The state

postconviction court denied the claim after concluding that counsel’s decision

not to call these Colombian witnesses to testify did not prejudice the defense

(Doc. 7-2 at 1365–67) (emphasis in original):

Defendant claims trial counsel was ineffective

for failing to call several witnesses on his behalf at

trial. . . . Defendant proffers several witnesses that

would have offered testimony on three issues: (1)

Defendant’s good character; (2) the victim was

“hanging with a bad crowd” and using drugs; and (3)

the victim threatened to retaliate against Defendant

after he informed her mother that she was using drugs

with her boyfriend.

[T]he Court finds no reasonable probability that

these witnesses’ general testimony about Defendant’s

good, law-abiding character would have changed the

outcome of this trial, given Defendant’s incriminating

statements during the controlled call in which he

concedes to an inappropriate sexual and romantic

history with the victim. Accordingly, this claim is

denied as to the testimony about Defendant’s good

character.

The remaining two issues go to the victim’s

motivation to fabricate the allegations as revenge for

Defendant interfering with her relationship with her

boyfriend. The jury was already apprised that the

victim had a short-term romantic relationship with a

boy her age who used drugs, and Defendant went to

the victim’s mother about those concerns. Trial

counsel argued to the jury that these matters

demonstrated Defendant’s fatherly, non-sexual role in

the victim’s life, and the victim fabricated her

allegations in response.

The Court finds no reasonable probability that

the proposed testimony about the victim and her

boyfriend, or about the victim’s alleged threats, would

have changed the outcome of the trial. The jury had

already learned of the victim’s brief relationship with

the boyfriend, that Defendant had tried to interfere by

bringing the issue up with her mother, and that the

victim was aware of Defendant’s interference. The

jury rejected counsel’s argument that the victim’s

allegations were a fabrication designed for revenge.

The only new information added by the witnesses in

this claim is that the victim allegedly made an explicit

threat to retaliate against Defendant for his

interference. However, nothing in the proffered

testimony indicates that the victim threatened to

fabricate the allegations, only that she threatened to

retaliate against Defendant. Moreover, the

fabrication defense is plainly inconsistent with

Defendant’s apologies and admissions during the

controlled call when the victim confronted him about

their romantic and sexual relationship. Whatever

additional value can be found in testimony about

explicit threats by the victim, without threats of

fabrication, it is insufficient to overcome Defendant’s

own statements and admissions to the contrary.

The state postconviction court reasonably found that counsel’s decision

not to call these Colombian witnesses to testify did not prejudice Gonzalez-

Garcia. “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). “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.” Id. at 687. “Applying

AEDPA to Strickland’s prejudice standard, [the court] must decide whether

the state court’s conclusion that [counsel’s] performance . . . didn’t prejudice

[Gonzalez-Garcia]—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).

Gonzalez-Garcia fails to meet his burden. In his reply, Gonzalez-Garcia

complains that the jury rejected counsel’s argument that the victim fabricated

her allegations because counsel neglected to present any evidence at trial to

support that conclusion. (Civ. Doc. 15 at 4) He argues, “[i]t cannot be

presumed how a jury . . . would have reacted after hearing the testimony about

[the victim’s] threats to retaliate.” (Id.) Gonzalez-Garcia’s claim is pure

speculation. He presents no evidence that the proposed testimony from the

Colombian witnesses would have supported his theory that the victim

fabricated her allegations. Notably, his brother and father do not go so far as

to attest that the victim threatened to retaliate by fabricating testimony. (Civ.

Doc. 1-1 at 11 and 16) Rather, they merely attest that the victim threatened

to retaliate against Gonzalez-Garcia for reporting to her mother that she was

using drugs. (Id.) Nothing in the record—beyond Gonzalez-Garcia’s pure

speculation about how the jury would react—suggests that the victim

threatened to retaliate by fabricating testimony. Gonzalez-Garcia’s

“speculation” “is insufficient to carry his burden as a habeas corpus petitioner.”

Johnson v. Alabama, 256 F.3d 1156, 1187 (11th Cir. 2001).

Furthermore, Gonzalez-Garcia fails to reconcile his fabrication theory

with his apologies and admissions during the controlled call when the victim

confronted him about their romantic and sexual relationship. And, the jury

heard testimony about the victim’s relationship with her boyfriend and

Gonzalez-Garcia’s reporting to the victim’s mother about her drug use.

Counsel’s decision not to present cumulative evidence from the Colombian

witnesses as to these facts was not prejudicial. See Guardado v. Sec’y, Fla.

Dep’t of Corr., 112 F.4th 958, 984 (11th Cir. 2024) (“[N]o prejudice can result

from the exclusion of cumulative evidence.”). Because “some fairminded jurists

could agree” that Gonzalez-Garcia failed to show prejudice, “federal habeas

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

B. Ground Two

Gonzalez-Garcia raises a related claim in Ground Two.1 He claims that

the state trial court violated his Fifth, Sixth, and Fourteenth Amendment

rights by denying his request to depose the Colombian witnesses and call them

to testify at trial. He argues that these witnesses could have offered material,

exculpatory testimony that would have cast doubt on his guilt and would have

changed the outcome of the trial. Notably, when the trial court asked whether

1 Gonzalez-Garcia describes Ground Two as “part and parcel of Ground One.” (Doc.

15 at 5)

he was “aware of any witnesses that should be called at this portion of the

trial,” Gonzalez-Garcia responded, “No.” (Doc. 7-2 at 621)

Respondent argues, and this Court agrees, that this federal claim is

unexhausted and procedurally barred because Gonzalez-Garia neglected to

present it to the state court. Before seeking habeas relief for a violation of

federal law under § 2254, a petitioner “must exhaust all state court remedies

available for challenging his conviction.” Preston v. Sec’y, Fla. Dept. of Corr.,

785 F.3d 449, 457 (11th Cir. 2015) (quotations omitted). Proper exhaustion

requires a petitioner to “make the state court aware that the claims asserted

present federal constitutional issues.” Jiminez v. Fla. Dep’t of Corr., 481 F.3d

1337, 1342 (11th Cir. 2007). “A litigant wishing to raise a federal issue can

easily indicate the federal law basis for his claim in a state court petition or

brief, for example, by citing in conjunction with the claim the federal source of

law on which he relies or a case deciding such a claim on federal grounds, or

by simply labeling the claim ‘federal.’” Baldwin v. Reese, 541 U.S. 27, 32

(2004). A petitioner must do more, however, than “scatter some makeshift

needles in the haystack of the state court record.” McNair v. Campbell, 416

F.3d 1291, 1303 (11th Cir. 2005). Moreover, a petitioner “does not ‘fairly

present’ a claim to a state court if that court must read beyond a petition or a

brief” to find the “federal claim.” Baldwin, 541 U.S. at 32.

A petitioner may excuse a procedural default on federal habeas by

showing cause for the default and actual prejudice from the alleged violation

of federal law. Maples v. Thomas, 565 U.S. 266, 280 (2012). In his reply,

Gonzalez-Garcia acknowledges his procedural default of this claim but urges

the Court to excuse his procedural default, citing Martinez v. Ryan, 566 U.S. 1

(2012).

Martinez holds that (1) when a state court requires a defendant to raise

an ineffective assistance of counsel claim in a collateral proceeding, a petitioner

can (2) establish cause by showing either that the state court did not appoint

him counsel in the proceeding or that appointed counsel was ineffective for

failing to raise the claim and (3) establish prejudice by showing that the claim

is a “substantial” one, or has “some merit.” Martinez, 566 U.S. at 14. A

petitioner shows that his defaulted claim is “substantial” by demonstrating

that “reasonable jurists ‘would find it debatable whether the petition states a

valid claim of the denial of a constitutional right.’” Clark v. Comm’r, Ala. Dep’t

of Corr., 988 F.3d 1326, 1331 (11th Cir. 2021) (quoting Hittson v. GDCP

Warden, 759 F.3d 1210, 1269–70 (11th Cir. 2014)).

A Florida court requires a defendant to raise an ineffective assistance of

counsel claim in a collateral proceeding, and Gonzalez-Garcia was not

appointed counsel in his state post-conviction proceeding. Trevino v. Thaler,

569 U.S. 413, 423–28 (2013); Robards v. State, 112 So. 3d 1256, 1266–67 (Fla.

2013). Consequently, Gonzalez-Garcia must show that the procedurally

defaulted claim has “some merit.” Martinez, 566 U.S. at 14.

Martinez does not excuse Gonzalez-Garcia’s default because his claim is

not substantial. 566 U.S. at 14. Specifically, he cannot show that he suffered

prejudice from counsel’s failure to call the Colombian witnesses to testify. The

prosecution presented “substantial evidence” of Gonzalez-Garcia’s guilt,

including his incriminating statements during the controlled call in which he

conceded to an inappropriate sexual and romantic relationship with the victim.

Fugate v. Head, 261 F.3d 1206, 1224 (11th Cir. 2001); see also McCoy v.

Newsome, 953 F.2d 1252, 1262 (11th Cir. 1992) (“[T]he other substantial

evidence of [petitioner’s] guilt negates any possibility of prejudice resulting

from his attorney’s [allegedly deficient performance].”). Given the strength of

the prosecution’s case, Gonzalez-Garcia cannot show the requisite prejudice

from the failure to present testimony of the Colombian witnesses. See 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.”).

C. Ground Three

Gonzalez-Garcia claims that counsel was ineffective for not calling to

testify a Colombian physician who treated the victim at the time of the alleged

abuse. He suggests that the physician would have testified that “her medical

report . . . showed there was no signs of sexual abuse” and that “the victim

didn’t seem to be under any pressure of coercion by the petitioner to omit

certain facts about her sexual condition or history as the victim claimed was

the case.” (Doc. 1 at 17) He argues that this testimony would have bolstered

his theory that the victim fabricated allegations of sexual abuse in retaliation

against him. (Id. and Doc. 15 at 6)

Gonzalez-Garcia files the victim’s medical records in support of this

claim. (Doc. 1-1 at 40–52) The records show that the victim was treated on

five dates in 2010 and 2012 for symptoms of general illness and abdominal

pains. The records state that the victim was not sexually active.

Gonzalez-Garcia raised this claim in ground six of his state

postconviction motion and third amended state postconviction motion, as well

as on appeal from the denial of postconviction relief. The state postconviction

court denied the claim (Doc. 7-2 at 1369):

Defendant claims trial counsel was ineffective

for failing to call the victim’s doctor in Colombia to

testify that the victim was still a virgin by the age of

17, contrary to her trial testimony and several of the

charges. Trial counsel used the victim’s medical

records from Colombia during the victim’s deposition.

That deposition reveals that the medical records

pertaining the victim’s sexual activity were based

solely on the victim’s self-reporting. The victim also

explained that she denied being sexually active during

these visits because Defendant told her to do so, and

Defendant frequently accompanied her as a guardian

on the visits, including being present in the room

during the appointments. Based on this record, the

Court finds that trial counsel’s decision not to call the

victim’s doctor at trial was not deficient, and

Defendant was not prejudiced.

The state postconviction court reasonably found that counsel’s decision

not to call the Colombian physician to testify was neither deficient nor

prejudicial. Although the medical reports state that the victim was not

sexually active, none of the reports states whether this information was

obtained verbally from the victim or by physical examination. And, the

medical reports are silent as to whether she was examined for signs of sexual

abuse or activity. The state court record shows that counsel inquired about the

medical records during the victim’s deposition, and the victim testified that she

was coerced into denying her sexual history because Gonzalez-Garcia

accompanied her at the medical appointments. (Doc. 7-2 at 1540) She testified

that Gonzalez-Garcia told her to deny her sexual history because “he didn’t

want [the victim’s] mom to know about it.” (Id.) Given these facts, counsel’s

decision not to call the Colombian physician to testify was a presumptively

reasonable and strategic decision that is “virtually unchallengeable.” Mendoza

v. State, 81 So.3d 579, 581 (Fla. 3d DCA 2012) (“[I]f counsel conducts a

reasonable investigation of a potential witness, the subsequent decision not to

call such a witness is ‘virtually unchallengeable.’”).

Once such a presumption arises, a petitioner can only overcome it by

showing that “‘no competent counsel’ would have made the same decision.” Id.

(quoting White v. State, 729 So.2d 909, 912 (Fla. 1999)). Gonzalez-Garcia fails

to overcome this burden. He neglects to provide an affidavit from the

Colombian physician. He merely speculates that the “physician’s testimony

that [the victim] was a virgin prior to her 17th birthday would have freed

[him].” (Civ. Doc. 15 at 6) “Such speculation cannot form the basis of a valid

claim.” Estiven v. Sec’y, Dept. of Corr., No. 16-14056, 2017 WL 6606915, at *4

(11th Cir. Sept. 28, 2017) (citing Tejada v. Dugger, 941 F.2d 1551, 1559 (11th

Cir. 1991) (stating that a movant is not entitled to habeas relief when his

claims are merely “conclusory allegations unsupported by specifics or

contentions that in the face of the record are wholly incredible”) and 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 on affidavit. A defendant cannot simply

state that the testimony would have been favorable; self-serving speculation

will not sustain an ineffective assistance claim.”)). Gonzalez-Garcia has not

shown that failing to call the Colombian physician was so patently

unreasonable that no competent counsel would have made that decision. Nor

has he shown a reasonable probability the jury would have reached a different

verdict after hearing the physician’s testimony.

D. Ground Four

Gonzalez-Garcia claims the state trial court violated his Fifth and

Fourteenth Amendment rights by admitting evidence of uncharged offenses he

committed against the victim in Colombia. He argues that these offenses

“happened in different ways and under different circumstances than the

charged offenses in the United States.” (Doc. 1 at 20–21) He further argues

that one of the incidents occurred when the victim was older than the age of

consent in Colombia and therefore was not a criminal incident. (Id. at 21) He

argues that this evidence was so prejudicial that it violated his constitutional

rights.

Before trial, the court admitted evidence of Gonzalez-Garcia’s collateral

offenses against the victim under Williams v. State, 110 So. 2d 654 (Fla. 1959)

and Florida Statute § 90.404(2)(b). (Doc. 7-2 at 208–215) The trial court found

that the collateral offenses were “probative towards corroborating [the

victim’s] allegations and testimony regarding the charged crimes” and that

“any danger of unfair prejudice flowing from such evidence d[id] not

substantially outweigh the probative value.” (Id. at 213)

Gonzalez-Garcia challenged this ruling on direct appeal and argued that

the Williams rule evidence of the collateral crimes was “not sufficiently similar

to the allegations in the charged offenses” and was “not reliable.” (Doc. 7-2 at

1211) The state appellate court affirmed without an opinion. (Doc. 7-2 at 1266)

Respondent argues, and this Court agrees, that this claim is

unexhausted and procedurally barred because Gonzalez-Garia neglected to

allege a federal constitutional violation relating to the trial court’s admission

of the Williams rule evidence. Gonzalez-Garcia neglected to cite any federal

law or otherwise alert the state court that he was attempting to raise a federal

constitutional claim. Circuit caselaw is clear that the petitioner must explicitly

invoke federal law to sufficiently exhaust his claims in state court; “it [is not]

sufficient that all facts necessary to support the [federal] claim were before the

state courts or that a somewhat similar state-law claim was made.” Kelley v.

Sec’y, Dep’t of Corr., 377 F.3d 1317, 1343–44 (11th Cir. 2004) (cleaned up).

Because Gonzalez-Garcia failed to reference federal law on direct appeal, his

federal constitutional claim challenging the admission of other crimes evidence

was not exhausted. See Jimenez v. Fla. Dep’t of Corr., 481 F.3d 1337, 1342

(11th Cir. 2007) (“[T]o exhaust state remedies fully, the petitioner must make

the state court aware that the claims asserted present federal constitutional

issues.”).

In his reply, Gonzalez-Garcia appears to acknowledge his procedural

default of this claim but suggests that appellate counsel’s ineffective assistance

constitutes cause to excuse his procedural default. (Doc. 15 at 7) He vaguely

points to appellate counsel’s “omission” of the federalized claim. However, a

“claim of ineffective assistance” must “be presented to the state courts as an

independent claim before it may be used to establish cause for a procedural

default.” Edwards v. Carpenter, 529 U.S. 446, 452 (2000). Because Gonzalez-

Garcia did not “raise his ineffective-assistance-of-appellate-counsel claim

[based on appellate counsel’s failure to federalize his challenge to the trial

court’s admission of the Williams rule evidence] in state court, he has failed to

exhaust (and thus cannot now press) his only argument for cause.” Ledford v.

Warden, Ga., Diagnostic Prison, 975 F.3d 1145, 1161 (11th Cir. 2020).

Accordingly, Gonzalez-Garcia has not shown that an exception applies to

overcome the default, and this claim is barred from federal habeas review.

E. Ground Five

Gonzalez-Garcia vaguely claims that cumulative errors of the state trial

court and counsel violated his constitutional rights to effective assistance of

counsel and a fair trial. (Doc. 1 at 23–24) He supports this claim with little

explanation or detail. (Doc. 15 at 5 and 7)

“The cumulative error doctrine provides that an aggregation of non-

reversible errors (i.e., plain errors failing to necessitate reversal and harmless

errors) can yield a denial of the constitutional right to a fair trial, which calls

for reversal.” United States v. Baker, 432 F.3d 1189, 1223 (11th Cir. 2005).

“[Courts] address claims of cumulative error by first considering the validity of

each claim individually, and then examining any errors that [the court] find[s]

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, Dept. of

Corr., 677 F.3d 1117, 1132 (11th Cir. 2012).

Gonzalez-Garcia’s claim of cumulative error fails because none of his

individual claims of error or prejudice have any merit, and therefore, there is

“nothing to accumulate.” Id. “[W]here there is no error in any of the trial

court’s rulings, the argument that cumulative trial error requires that this

Court reverse [the petitioner’s] convictions is without merit.” Id. (quotations

omitted).

IV. Conclusion

Accordingly, it is ORDERED that Gonzalez-Garcia’s petition (Doc. 1) is

DENIED. The Clerk is directed to enter judgment against Gonzalez-Garcia

and to CLOSE this case.

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 “circuit justice or judge” 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 have

the district court’s assessment of the constitutional claims debatable or wrong,”

Tennard v. Dretke, 542 U.S. 274, 276 (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, 537 U.S. 322, 335—

36 (2003) (citations omitted). Gonzalez-Garcia has not made the requisite

showing. Accordingly, a certificate of appealability is DENIED. Leave to

appeal in forma pauperis is DENIED. Gonzalez-Garcia must obtain

permission from the circuit court to appeal in forma pauperis.

DONE and ORDERED in Chambers in Tampa, Florida, this 2nd day

of February, 2026.

-TOMBARBER is

U.S. DISTRICT JUDGE

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