Bryant v. Secretary, Department of Corrections et al

Filing 45

OPINION AND ORDER dismissing the Florida Attorney General as a named respondent; dismissing Claim One of 20 Amended petition for writ of habeas corpus as unexhausted and otherwise denying remaining claims on merits. A certificate of appealability and leave to appeal in forma pauperis are denied. The Clerk shall enter judgment accordingly, terminate any pending motions and deadlines, and close the case. Signed by Judge John E. Steele on 12/20/2016. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
TOMMY RAY BRYANT,
Petitioner,
v.

Case No: 2:13-cv-756-FtM-29CM

SECRETARY,
FLORIDA
DEPARTMENT OF CORRECTIONS
and ATTORNEY GENERAL, STATE
OF FLORIDA,
Respondents. 1

OPINION AND ORDER
This matter comes before the Court on an amended petition for
habeas corpus relief filed pursuant to 28 U.S.C. § 2254 by Tommy
Ray Bryant (“Petitioner”), a prisoner of the Florida Department of
Corrections (Doc. 20, filed December 30, 2013).

Petitioner,

proceeding pro se, attacks the convictions and sentences entered
against him by the Twentieth Judicial Circuit Court in Collier
County, Florida for attempted sexual battery of a child less than
twelve years old and resisting an officer with violence. Id.

1

When the petitioner is incarcerated and challenges his
present 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, 436 (2004) (citations omitted).
In
Florida, the proper respondent in this action is the Secretary of
the Florida Department of Corrections.
Therefore, the Florida
Attorney General will be dismissed from this action.

Respondent filed a response to the amended petition (Doc. 26).
Petitioner filed a reply (Doc. 29).

The matter is now ripe for

review.
Upon due consideration of the pleadings and the state court
record, the Court concludes that each claim must be dismissed or
denied.

Because the petition is resolved on the record, an

evidentiary hearing is not warranted.

See Schriro v. Landrigan,

550 U.S. 465, 474 (2007) (if the record refutes the factual
allegations in the petition or otherwise precludes habeas relief,
a district court is not required to hold an evidentiary hearing).
I.
On

September

Background and Procedural History
7,

2005,

the

state

charged

Petitioner

by

information with two counts of capital sexual battery on a child
less than twelve years old and one count of resisting an officer
with violence (Ex. 7). 2

On October 9, 2007, Petitioner entered

into a negotiated plea agreement with the state in which an amended
information was filed in open court charging Petitioner with
attempted sexual battery on a child less than twelve years old
(Count One) and resisting an officer with violence (Count Two)(Ex.
8).

Per the plea agreement, Petitioner was sentenced to eighteen

years in prison as a habitual felony offender to be followed by
four years of sex offender probation on the sexual battery charge

2

Unless otherwise indicated, citations to exhibits are to
those filed by Respondent on May 27, 2014 (Doc. 28).

- 2 -

(Ex. 9).

Petitioner was sentenced to a concurrent term of five

years in prison on the resisting arrest with violence charge. Id.
Petitioner was also declared a sexual predator. Id.

Petitioner

did not file a direct appeal.
On November 7, 2007, Petitioner filed his first motion for
post-conviction relief pursuant to Rule 3.850 of the Florida Rules
of Criminal Procedure (“Rule 3.850 motion”) (Ex. 11).

The motion

was dismissed as facially insufficient (Ex. 12).
On January 22, 2008, Petitioner filed a state petition for
writ of habeas corpus in the Florida Supreme Court (Ex. 13).

The

Florida Supreme Court construed the petition as a motion to correct
an illegal sentence filed pursuant to Rule 3.800(a) of the Florida
Rules of Criminal Procedure and transferred the petition to the
circuit court (Ex. 14).

On March 12, 2008, Petitioner filed a

separate Rule 3.800(a) motion to correct illegal sentence in the
circuit court (Ex. 15).
denied (Ex. 18).

The resulting consolidated motion was

Although Petitioner filed a timely notice of

appeal, he subsequently filed a motion for voluntary dismissal
(Ex. 19).
On January 12, 2009, Petitioner filed a second Rule 3.850
motion claiming that his speedy trial rights were violated in the
trial court and that his designation as a habitual felony offender
was illegal (Ex. 20).

He subsequently filed an amended motion

asserting claims of ineffective assistance of counsel based on

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these same grounds (Ex. 21).
relief

(Ex.

26).

The post-conviction court denied

Florida’s

Second

District

Court

of

Appeal

affirmed without an opinion (Ex. 27); Bryant v. State, 80 So. 3d
1028 (Fla. 2d DCA 2012).
Petitioner filed a third Rule 3.850 motion on March 24, 2011
raising a claim of newly discovered evidence (Ex. 29).
sworn

statements

from

the

victim,

the

He attached

victim’s

mother,

Petitioner’s son, and Petitioner’s mother asserting his innocence.
Id.

He subsequently filed an amended motion (Ex. 33).

On May 23,

2012, the post-conviction court denied both motions (Ex. 35).
Florida’s Second District Court of Appeal affirmed without an
opinion (Ex. 37); Bryant v. State, 109 So. 3d 792 (Fla. 2d DCA
2013).
On July 5, 2012, Petitioner filed a third Rule 3.800(a) motion
to correct an illegal sentence (Ex. 38).
as successive (Ex. 39).

The motion was dismissed

Florida’s Second District Court of Appeal

affirmed (Ex. 41).
Petitioner filed a federal habeas petition in this Court on
October 1, 2013 (Doc. 1).

He filed the present amended petition

on December 26, 2013 (Doc. 26).

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II.
A.

Legal Standards

The Antiterrorism Effective Death Penalty Act (“AEDPA”)
Pursuant to the AEDPA, federal habeas relief may not be

granted with respect to a claim adjudicated on the merits in state
court 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.

28 U.S.C. § 2254(d).
to meet.

This standard is both mandatory and difficult

White v. Woodall, 134 S. Ct. 1697, 1702 (2014).

A state

court’s summary rejection of a claim, even without explanation,
qualifies
deference.
2008).

as

an

adjudication

on

the

merits

which

warrants

Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir.

Notably, a state court’s violation of state law is not

sufficient to show that a petitioner is in custody in violation of
the “Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 16 (2010).
“Clearly established federal law” consists of the governing
legal principles, rather than the dicta, set forth in the decisions
of the United States Supreme Court at the time the state court
issued its decision. White, 134 S. Ct. at 1702; Carey v. Musladin,
549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362,

- 5 -

412 (2000)).

That said, the Supreme Court has also explained that

“the lack of a Supreme Court decision on nearly identical facts
does not by itself mean that there is no clearly established
federal law, since ‘a general standard' from [the Supreme Court's]
cases can supply such law.” Marshall v. Rodgers, 133 S. Ct. 1446,
1449 (2013) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)).

State courts “must reasonably apply the rules ‘squarely

established’ by [the Supreme] Court’s holdings to the facts of
each

case.

White,

134

S.

Ct.

at

1706

(quoting

Knowles

v.

Mirzayance, 556 U.S. 111, 122 (2009)).
Even if there is clearly established federal law on point,
habeas relief is only appropriate if the state court decision was
“contrary to, or an unreasonable application of,” that federal
law. 29 U.S.C. § 2254(d)(1).

A decision is “contrary to” clearly

established federal law if the state court either: (1) applied a
rule that contradicts the governing law set forth by Supreme Court
case law; or (2) reached a different result from the Supreme Court
when faced with materially indistinguishable facts. Ward v. Hall,
592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540
U.S. 12, 16 (2003).
A state court decision involves an “unreasonable application”
of the Supreme Court’s precedents if the state court correctly
identifies the governing legal principle, but applies it to the
facts of the petitioner’s case in an objectively unreasonable

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manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v.
Moore, 234 F.3d 526, 531 (11th Cir. 2000), or “if the state court
either unreasonably extends a legal principle from [Supreme Court]
precedent

to

a

new

context

where

it

should

not

apply

or

unreasonably refuses to extend that principle to a new context
where

it

should

apply.”

Bottoson,

Williams, 529 U.S. at 406).

234

F.3d

at

531

(quoting

The petitioner must show that the

state court's ruling was “so lacking in justification that there
was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” White, 134 S.
Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. 86 (2011)).
Moreover,

“it

is

not

an

unreasonable

application

of

clearly

established Federal law for a state court to decline to apply a
specific legal rule that has not been squarely established by [the
Supreme] Court.” Knowles, 556 U.S. at 122.
Finally, when reviewing a claim under § 2254(d), a federal
court must bear in mind that any “determination of a factual issue
made by a State court shall be presumed to be correct[,]” and the
petitioner bears “the burden of rebutting the presumption of
correctness

by

clear

and

convincing

evidence.”

28

U.S.C.

§

2254(e)(1); Miller–El v. Cockrell, 537 U.S. 322, 340 (2003) (“a
decision adjudicated on the merits in a state court and based on
a factual determination will not be overturned on factual grounds
unless objectively unreasonable in light of the evidence presented

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in the state-court proceeding”) (dictum);

Burt v. Titlow, 134 S.

Ct. 10, 15-16 (2013) (same).
B.

Ineffective Assistance of Counsel

In Strickland v. Washington, the Supreme Court established a
two-part

test

entitled

to

for

relief

determining
on

the

whether

ground

that

a

convicted
his

person

counsel

ineffective assistance. 466 U.S. 668, 687-88 (1984).

is

rendered

A petitioner

must establish that counsel’s performance was deficient and fell
below

an

objective

standard

of

reasonableness

and

deficient performance prejudiced the defense. Id.

that

the

This is a

“doubly deferential” standard of review that gives both the state
court and the petitioner’s attorney the benefit of the doubt.
Burt, 134 S. Ct. at 13 (citing Cullen v. Pinholster, 563 U.S. 170
(2011)).
The focus of inquiry under Strickland's performance prong is
“reasonableness under prevailing professional norms.” Strickland,
466 U.S. at 688-89.

In reviewing counsel's performance, a court

must adhere to a strong presumption that “counsel's conduct falls
within the wide range of reasonable professional assistance[.]”
Id. at 689.
“prove,

by

Indeed, the petitioner bears the heavy burden to
a

preponderance

of

the

evidence,

that

counsel's

performance was unreasonable[.]” Jones v. Campbell, 436 F.3d 1285,
1293 (11th Cir. 2006).

A court must “judge the reasonableness of

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

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of the time of counsel's conduct,” applying a “highly deferential”
level of judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470,
477 (2000) (quoting Strickland, 466 U.S. at 690).
As

to

the

prejudice

prong

of

the

Strickland

standard,

Petitioner’s burden to demonstrate prejudice is high. Wellington
v.

Moore,

314

F.3d

1256,

1260

(11th

Cir.

2002).

Prejudice

“requires showing that counsel's errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.” Strickland, 466 U.S. at 687.

That is, “[t]he defendant

must show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different.” Id. at 694.
is

“a

probability

outcome.”

sufficient

Strickland,

466

to

U.S.

A reasonable probability

undermine
at

694.

In

confidence
order

to

in

the

satisfy

Strickland’s prejudice prong in the context of a guilty plea,
Petitioner must show that there is a reasonable probability that,
“but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill v. Lockhart, 474 U.S.
52, 59 (1985).
C.
The

AEDPA

Exhaustion and Procedural Default
precludes

federal

courts,

absent

exceptional

circumstances, from granting habeas relief unless a petitioner has
exhausted

all

means

of

available

relief

under

state

law.

Exhaustion of state remedies requires that the state prisoner

- 9 -

“fairly presen[t] federal claims to the state courts in order to
give the State the opportunity to pass upon and correct alleged
violations of its prisoners' federal rights[.]” Duncan v. Henry,
513 U.S. 364, 365 (1995) (citing Picard v. Connor, 404 U.S. 270,
275-76 (1971)).

The petitioner must apprise the state court of

the federal constitutional issue, not just the underlying facts of
the claim or a similar state law claim.

Snowden v. Singletary,

135 F.3d 732 (11th Cir. 1998).
In

addition,

a

federal

habeas

court

is

precluded

from

considering claims that are not exhausted and would clearly be
barred if returned to state court. Coleman v. Thompson, 501 U.S.
722, 735 n.1 (1991) (if a petitioner has failed to exhaust state
remedies and the state court to which the petitioner would be
required to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred, there
is a procedural default for federal habeas purposes regardless of
the decision of the last state court to which the petitioner
actually presented his claims).
Finally, a federal court must dismiss those claims or portions
of

claims

that

have

been

denied

procedural grounds under state law.

on

adequate

and

independent

Coleman, 501 U.S. at 750.

If

a petitioner attempts to raise a claim in a manner not permitted
by state procedural rules, he is barred from pursuing the same

- 10 -

claim in federal court.

Alderman v. Zant, 22 F.3d 1541, 1549

(11th Cir. 1994).
A petitioner can avoid the application of procedural default
by establishing objective cause for failing to properly raise the
claim

in

state

court

and

actual

prejudice

from

the

alleged

constitutional violation. Spencer v. Sec'y, Dep't of Corr., 609
F.3d 1170, 1179–80 (11th Cir. 2010). To show cause, a petitioner
“must demonstrate that some objective factor external to the
defense impeded the effort to raise the claim properly in state
court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999);
Murray v. Carrier, 477 U.S. 478 (1986).

To show prejudice, a

petitioner must demonstrate there is a reasonable probability the
outcome of the proceeding would have been different. Crawford v.
Head, 311 F.3d 1288, 1327–28 (11th Cir. 2002).
A second exception, known as the fundamental miscarriage of
justice,

only

occurs

in

an

extraordinary

case,

where

a

“constitutional violation has probably resulted in the conviction
of one who is actually innocent[.]”
478, 479-80 (1986).

Actual innocence means factual innocence, not

legal insufficiency.
(1998).

Murray v. Carrier, 477 U.S.

Bousley v. United States, 523 U.S. 614, 623

To meet this standard, a petitioner must “show that it

is more likely than not that no reasonable juror would have
convicted him” of the underlying offense. Schlup v. Delo, 513 U.S.
298, 327 (1995).

“To be credible, a claim of actual innocence

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must be based on [new] reliable evidence not presented at trial.”
Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup,
513 U.S. at 324).
III. Analysis
Petitioner raises four claims in his amended petition.

He

asserts that: (1) the eighteen-year sentence he received was
illegal because the maximum sentence for a second degree felony
was

fifteen

years

in

prison;

(2)

his

defense

attorneys

were

ineffective for not properly asserting his speedy trial rights;
(3) the victim filed an affidavit recanting her claims against
him; and (4) the state withheld an exculpatory report proving his
innocence (Doc. 20 at 4-9).

Petitioner also urges that trial

counsel (“Counsel”) was ineffective for failing to discover the
withheld exculpatory report (Doc. 29 at 10-11).

Each claim will

be addressed separately.
A.

Claim One

Petitioner claims that he received an illegal sentence (Doc.
20 at 4).

Specifically, he asserts that Counsel was ineffective

during plea negotiations for allowing the trial court to sentence
him to eighteen years in prison and four years of sex offender
probation on the attempted sexual battery charge when the statutory
maximum sentence for a second degree felony is only fifteen years
in prison. Id.

He asserts that the probationary period was illegal

because his conviction falls “under Fla. Stat. 777.” Id.

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He also

urges that Counsel should have corrected his sentencing score sheet
because no sexual contact points should have been assessed. Id.
Finally, Petitioner claims that he should not have been sentenced
as a habitual felony offender. Id.
Petitioner raised his claims of trial court sentencing error
through three Rule 3.800(a) motions (Ex. 13; Ex. 15; Ex. 39).

The

sentencing court denied each point raised in the first two motions 3
in a written order:
It appears that the Defendant is claiming in
his motions that his charges of attempted
sexual battery fall under Florida Statute
Chapter 777, and therefore, his sentence and
designation as a sexual predator in the above
referenced case exceeds the statutory maximum
for a second degree felony, that he does not
qualify as a habitual felony offender, and
that
his
scoresheet
was
calculated
incorrectly.
The record indicates that the Defendant was
originally charged with two counts of Capital
Sexual
Battery,
punishable
by
life
imprisonment, and one count of Resisting
Arrest with Violence, punishable by up to five
years’ imprisonment.
The Defendant was
adjudicated guilty on October 9, 2007 pursuant
to a negotiated plea agreement, for one count
of Attempted Capital Sexual Battery in
violation of Fla. Stat. § 794.011(2)(a) and
one count of Resisting Arrest with Violence in
violation of Fla. Stat. § 843.01.
In
3

The third motion, filed after the conclusion of Petitioner’s
other sentencing claims, was dismissed as successive (Ex. 40).
Florida’s Second District Court of Appeal affirmed (Ex. 41). A
state court's adequate and independent finding of procedural
default will bar federal habeas review of a claim unless the habeas
petitioner can show cause for the default and “prejudice
attributable thereto.” Murray v. Carrier, 477 U.S. 478, 485 (1986).

- 13 -

addition, the Defendant was found to be a
habitual felony offender and designated a
sexual predator. The Defendant was sentenced
to 18 years imprisonment followed by 4 years
sex offender probation for count one, and five
years’ imprisonment on count two to be served
concurrently.
Pursuant to Fla. Stat. § 777.04(4)(b), if the
offense attempted is a capital felony, the
offense of criminal attempt is a first degree
felony
punishable
by
up
to
30
years
imprisonment.
The record is inconclusive as to whether the
Defendant qualified to be sentenced as a
habitual felony offender.
If qualified as
such, he could have received an enhanced
sentence of life imprisonment on the offense
of Attempted Capital Sexual Battery and ten
years imprisonment on the offense of Resisting
Arrest
with
Violence.
Fla.
Stat.
§
775.084(4)(a). However, even if the Defendant
should not have been qualified as a habitual
felony offender, his sentence did not exceed
the maximum authorized for Attempted Capital
Battery
(first
degree
felony)
and
for
Resisting Arrest with Violence (third degree
felony), and any error in that regard is
harmless.
Accordingly, because the Defendant's total
incarceration period and probationary period
of 22 years is less than the maximum
authorized sentence the Defendant has failed
to demonstrate an entitlement to the relief
requested.
The Defendant also asserts that his scoresheet
was calculated incorrectly, assessing him
victim injury points. First, it appears from
the record that the Defendant did not object
to the scoresheet at any time, including the
sentencing hearing.
Second, the victim
injury points were assessed for sexual contact
not sexual penetration.
The record clearly
demonstrates that the Defendant had actual
sexual contact with the victim. As stated in

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the probable cause affidavit, according to the
eye witness:
“the male suspect was kissing the victim
on the face, neck, and mouth while
holding her in his arms.
The male put
the victim onto a towel that he placed on
the ground. He was touching her vagina
with his hand. The victim’s panties were
down around her calves and her skirt was
hiked up to her waist . . . The witness
saw the male place his face in the area
of the victim’s vagina while her panties
were still down around her calves . . .
he appeared to be performing oral sex on
the victim.”
The record clearly refutes the Defendant's
claims.
(Ex. 18 at 1-3) (enumeration and citations to the record omitted).
Petitioner did not appeal the trial court’s denial of this claim.
See Exhibit 19.

Accordingly, Petitioner’s claims of trial court

sentencing error are unexhausted.
A petitioner cannot satisfy the exhaustion requirement of 28
U.S.C.

§

2254(c)

if,

with

certain

exceptions

that

are

not

applicable in this case, he failed to avail himself of “any
available procedure” by which he has the right to raise his claim
in state court. See Baker v. Sec’y, Fla. Dep’t of Corr., 634 F.
App’x 689, 693 (11th Cir. 2015) (finding claim unexhausted because
the petitioner “abandoned it on appeal and, thus, did not raise
the claim throughout one round of Florida’s established appellate
review process”) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 845
(1999)).

Absent an exception to the procedural default bar (which

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Petitioner does not urge), the sentencing error claims raised in
Claim One are barred from review by this Court because Petitioner
did not appeal the trial court’s order denying them.
Likewise, Petitioner admits that he did not exhaust his
ineffective assistance claims on these issues in the state courts,
but urges that his failure to do so is excused by the Supreme
Court’s decision in Martinez v. Ryan (Doc. 29 at 4).

In Martinez

v. Ryan, 132 S. Ct. 1309 (2012) the United State Supreme Court
held:
Where, under state law, claims of ineffective
assistance of trial counsel must be raised in
an initial-review collateral proceeding, a
procedural default will not bar a federal
habeas court from hearing a substantial claim
of ineffective assistance at trial if, in the
initial-review collateral proceeding, there
was no counsel or counsel in that proceeding
was ineffective.
Id. at 1320.

Under Martinez, a petitioner must still establish

that his underlying ineffective assistance claim is “substantial”
-- that is, that it has “some merit” before the procedural default
can be excused.
of

the

record,

assistance

Martinez, 132 S. Ct. at 1318-19.
the

claims

Court
are

finds

that

unexhausted

Claim
because

One’s
they

Upon review
ineffective
are

not

“substantial” and do not fall within Martinez’ equitable exception
to the procedural bar.
Petitioner urges that Counsel was ineffective for not arguing
for a lower sentence because “the statutory maximum for a second

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degree felony was fifteen years” (Doc. 20 at 4).

The statutory

maximum prison sentence for a second degree felony is irrelevant;
Petitioner pleaded no contest to, and was adjudicated guilty of,
attempted sexual battery on a victim less than twelve years old
under Florida Statute § 794.011(2)(a) which is a first degree
felony

subject

to

a

thirty-year

maximum

sentence

(Ex.

9).

Petitioner was well aware of the nature of the crime to which he
was pleading; it was explained to him by the state prosecutor
during his plea colloquy:
STATE.

Can you please – your understanding
you’ve been charged in the second
amended information with attempted
capital sexual battery, a first
degree felony punishable by up to
thirty years’ incarceration and
resisting arrest with violence, a
third degree felony punishable up to
five years’ incarceration. It’s my
understanding you wish to change
your plea to these – how do you wish
to plea to these charges?

PETITIONER. No contest.
STATE.

Okay.
You understand that that’s
the maximum sentence on both of
these
cases.
With
the
plea
agreement that we’ve worked out in
this case is that you’re going to
receive eighteen years in Florida
State Prison with credit for time
served followed by four years sex
offender probation.
Is that your
understanding
of
the
plea
agreement?

PETITIONER. Yes, sir.
STATE.

Alright.

- 17 -

COURT:

And then the maximum penalties would
be?

STATE.

Thirty – under the second – under
the second amended information it
would be thirty followed by five.
Under
the
amended
information,
which we would have gone to trial if
there was a trial, it would be
potentially two life sentences plus
five years.

COURT.

Alright.

STATE.

This
–
the
second
amended
information’s
based
upon
plea
negotiations.

COUNSEL.

We concur with that analysis, Your
Honor.

COURT.

And do you understand that, Mr.
Bryant, those maximums of the State
– just told – informed you about?
Okay.

COUNSEL.

Okay.

(Ex. 8 at 12-14).

The trial court further explained to Petitioner

that, with his habitual felony offender (HVO) enhancement, he faced
sixty years, possibly life, in prison if convicted at trial. Id.
at

36-37.

The

trial

court

carefully

reviewed

each

right

Petitioner waived by pleading guilty before the plea was accepted,
and Petitioner affirmed his understanding of the consequences of
the plea. Id. at 32-34.

Petitioner told the Court that he believed

the plea to be in his own, and in his family’s, best interests.
Id. at 34.

Petitioner also signed a plea agreement in which he

affirmed his understanding of the nature of charges against him

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and

the

sentences

to

which

he

was

subject

(Ex.

35

at

9).

Thereafter, the trial court accepted Petitioner’s “plea of no
contest to both counts in the amended – second amended information,
case number 05-2647, Count I, attempted sexual battery of a child
less than twelve years of age, a first degree felony, and Count
II, resisting an officer with violence, a third degree felony.”
Id. at 41.

“[R]epresentations of the defendant . . . [at a plea

proceeding] as well as any findings made by the judge accepting
the pleas, constitute a formidable barrier in any subsequent
collateral proceedings. Solemn declarations in open court carry a
strong presumption of verity,” Blackledge v. Allison, 431 U.S. 63,
73-74 (1977).
Because Petitioner was charged with, and pleaded no contest
to, a first degree felony, Counsel had no reason to argue that a
second degree felony carried a fifteen-year maximum sentence.
Therefore, reasonable competent trial counsel would have decided
against

making

such

an

argument,

demonstrated deficient performance.

and

Petitioner

has

not

Provenzano v. Singletary, 148

F.3d 1327, 1332 (11th Cir. 1998) (noting that counsel's conduct is
unreasonable only if petitioner shows “that no competent counsel
would have made such a choice”).
As to Petitioner’s argument that Counsel should have objected
to

the

assessment

of

“contact

points,”

the

claim

is

equally

unavailing. Two witnesses observed Petitioner’s interaction with

- 19 -

the minor victim in this case.
sworn

statement

to

the

Witness Carol Taylor provided a

investigating

detective

in

described Petitioner’s contact with the victim (Ex. 5).

which

she

She told

the detective that she was alerted to Petitioner’s presence when
her dog began barking, and she saw Petitioner kissing a little
girl. Id. at 2.
police. Id.

She believed it did not look right, so she called

In a sworn statement, the detective questioned Taylor

about Petitioner’s interactions with the child:
Q.

Okay. And did it appear to you, did he
ever take any clothes off of her?
Did
he ever undress her?

A.

All he, all he, he had her I could see
her, she had little white panties on and
they were all curled down below her,
below her knees like he had pulled her
panties down below her knees and at one
time he stood her up and I, and that’s
the only time I’d seen her bare butt. I
didn’t see the front of her but I saw her
bare butt when his pant [sic], when he
stood her up that one time just before he
sat her on his knee. When he sat her on
the knee then I could see she still had
her panties down below her knees.
She
had her panties below her knees until the
officers got there and that’s when he
finally pulled the panties up but the
whole time her panties were down.

Q.

Okay.
her?

A.

On her vagina, her neck, her face and
that’s as far as I saw her kiss him cause
I saw him go down on her.

Q.

Okay and when you say go down on her?

Where else did you see him kissing

- 20 -

A.

Id. at 2.

On her vagina area. I saw his face on
her vagina area. I didn’t see her vagina
but I saw it down there.

Taylor also testified that Petitioner appeared to be

masturbating with one hand while his other hand was on the child’s
vagina. Id. at 6.

Witness Daniel Burton Chamberlain told the

detective in a sworn statement that he observed Petitioner “rubbing
the little girl’s vagina” and putting “his mouth on the girl’s
vagina” while he (Petitioner) masturbated (Ex. 5 at 4).

Under

Florida law, “contact” in the context of a sexual battery charge
includes a “touching or meeting.” See Roughton v. State, 185 So.
3d 1207, 1212 (Fla. 2016).

Given the graphic descriptions of

Petitioner’s activity with the victim, reasonable counsel could
have decided against objecting to the assessment of sexual contact
points.
Finally, Counsel was not ineffective for failing to object to
Petitioner’s designation as a habitual felony offender.

Under

Florida law, a defendant may be sentenced as a habitual felony
offender if he “has previously been convicted of two or more
felonies in [Florida],” and the felony for which the defendant is
to be sentenced occurred within five years of the defendant's
release from prison. Fla. Stat. § 775.084(1).

Petitioner does not

explain why he feels that he was not subject to an HVO designation.
His arrest report indicates that, prior to the instant offense, he
was arrested more than forty times in Collier County alone (Ex.

- 21 -

1).

At his plea colloquy, Petitioner was specifically asked about

his prior convictions for the purposes of establishing the HVO
designation:
COURT.

Alright.
Case number 98-1582, it
was conviction of driving while
license suspended or revoked, and
that was in 1998.
. . .

PETITIONER. Yes, ma’am.
COURT.

Okay. In case number 04-250, it was
conviction
for
burglary
of
an
unoccupied conveyance and also two
counts of petty theft, no, I’m
sorry, just one count of petty
theft. And that occurred in May of
2004.

PETITIONER. Yes, ma’am.
COURT.

Okay.

STATE.

And that’s really the important one
‘cause that’s the one within the
five.

COURT.

Right.
And then in September of
1993, conviction for uttering a
forged count of grand theft in case
number, I’m sorry, 93-563.

PETITIONER. Yes, Ma’am.
COURT.

Alright. And are you, in fact, the
defendant in all three of those
cases?

PETITIONER. Yes, ma’am.
COURT.

Alright. And do you have any proof
that these convictions have been set
aside by post – post conviction

- 22 -

proceedings or a pardon from the
government?
PETITIONER. No, ma’am.
COURT.

Alright.

(Ex. 8 at 29-30).
convictions,
against

Given Petitioner’s admission to the prior

reasonable,

objecting

to

competent

his

counsel

designation

as

could
a

have

habitual

decided
felony

offender. 4
Because

Petitioner

cannot

satisfy

the

first

prong

of

Strickland’s ineffectiveness test on any of his sentencing claims,
the

ineffective

assistance

claims

raised

Claim

One

are

not

“substantial” so as to excuse Petitioner’s failure to exhaust them
in

state

court.

Martinez,

132

S.

Ct.

at

1318-20.

Nor

has

Petitioner presented new, reliable evidence indicating that the
actual innocence exception would apply to excuse his default of
this claim.

All issues raised in Claim One are dismissed as

unexhausted.
B.

Claim Two

Petitioner asserts that Counsel was ineffective because she
filed a demand for speedy trial instead of a notice of expiration
of speedy trial time and motion for discharge (Doc. 20 at 6).

4

To the extent Petitioner asserts that he did not receive
notice of the state’s intent to seek HVO status prior to his plea,
the assertion is conclusively refuted by the record. Petitioner
received notice of the HVO sentence before his plea and was advised
of the consequence of the sentence (Ex. 8 at 6, 21, 35, 37-40).

- 23 -

Petitioner raised this claim in his second Rule 3.850 motion, where
it was denied by the post-conviction court:
Defendant asserts that his rights to a speedy
trial were violated when his trial counsel,
who had a conflict of interest, filed several
speedy trial waivers.
Even if Defendant's
first attorney filed several speedy trial
waivers, the record reflects that the attorney
who subsequently represented Defendant filed
a demand for speedy trial on August 30, 2007,
and Defendant's trial was scheduled to begin
on October 9, 2007. Speedy trial rights under
Fla. R. Crim. P. 3.191, may be waived by an
attorney without consulting a defendant, or
even against a defendant's wishes. Randall v.
State, 938 So. 2d 542 (Fla. 1st DCA 2006);
State v. Kruger, 615 So. 2d 757 (Fla. 4th DCA
1993).
In addition, when Defendant entered
his plea, he waived his rights to speedy
trial. Sydoriak v. State, 947 So. 2d 1287,
1290 (Fla. 5th DCA 2007) (“By virtue of the
entry and acceptance of appellant’s nolo
contendere plea, appellant waived his right to
a speedy trial”).
(Ex. 26 at 2).

The rejection of this claim was affirmed by

Florida’s Second District Court of Appeal (Ex. 27).

Petitioner

does not explain how the state courts’ rejections were contrary to
Strickland or based upon an unreasonable determination of the
facts.

A review of the record and applicable law supports the

state courts’ conclusions on Claim Two.
First,
attorney

to

erred

the

extent

by

waiving

Petitioner
speedy

Petitioner does not state a claim.

urges

trial

that

his

initial

against

his

wishes,

Petitioner has presented no

argument or evidence to overcome the presumed competence of his

- 24 -

first attorney.

Kimmelman v. Morrison, 477 U.S. 365, 384 (1986)

(“[T]he defendant must rebut this presumption by proving that his
attorney's

representation

was

unreasonable

under

prevailing

professional norms and that the challenged action was not sound
strategy.”).

Where, as here, “the record is incomplete or unclear

about [counsel]’s actions, we will presume that he did what he
should have done, and that he exercised reasonable professional
judgment.” Chandler v. United States, 218 F.3d 1305, 1314 n.15
(11th Cir. 2000) (quoting Williams v. Head, 185 F.3d 1223, 1228
(11th Cir. 1999)).
the

Court

will

Therefore, absent evidence to the contrary,

assume

that

Petitioner’s

first

trial

counsel

believed it necessary to extend his preparation time by waiving
speedy trial.

See Strickland, 466 U.S. at 689 (“[A] court must

indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance; that is, the
defendant

must

overcome

the

presumption

that,

under

the

circumstances, the challenged action might be considered sound
trial strategy.”) (internal quotation marks omitted).

A waiver

of his client’s statutory speedy trial rights by counsel is binding
on the defendant, “even though done without consulting him and
even against the client’s wishes.” State v. Kruger, 615 So. 2d
757, 759 (Fla. 4th DCA 1993).
Equally unavailing is Petitioner’s assertion that Counsel,
his second defense attorney, was ineffective for filing a demand

- 25 -

for speedy trial instead of a notice of expiration and motion for
discharge.

Under Florida law, Counsel could not have done as

Petitioner now suggests.

A trial continuance granted at the

request of the accused (in this case by Petitioner’s first defense
attorney) constitutes a waiver of the right to a speedy trial under
Rule 3.191(a) of the Florida Rules of Criminal Procedure. 5
v. Gibson, 783 So. 2d 1155, 1159 (Fla. 5th DCA 2001).

State

Once speedy

trial is waived, the accused continues to have available the right
to demand a speedy trial within sixty days pursuant to Rule
3.191(b) as well as his constitutional right to speedy trial
guaranteed under the state and federal constitutions. Butterworth
v. Fluellen, 389 So. 2d 968 (Fla. 1980).

Therefore, to the extent

Petitioner sought to exercise his speedy trial rights, under
Florida law, Counsel was constrained to demanding a speedy trial
pursuant to Rule 3. 191(b), which is precisely what she did.

5

Under Rule 3.191(a) of the Florida Rules of Criminal
Procedure, a person charged with a felony must be brought to trial
within 175 days of arrest. Fla. R. Crim. P. 3.191(a). After the
175–day speedy trial period expires, a defendant may file a “Notice
of Expiration of Speedy Trial Time.” Fla. R. Crim. P. 3.191(p)();
State v. Nelson, 26 So. 3d 570, 574 (Fla. 2010). Within five days
of filing the notice, the court must holding a hearing to determine
whether any exceptions exist, which would prevent speedy trial,
such as the defendant's unavailability. Fla. R. Crim. P.
3.191(p)(3); Nelson, 26 So. 3d at 574. If no exceptions exist,
the trial court must order that the defendant be brought to trial
within the ten-day recapture period. Fla. R. Crim. P. 3.191(p)(3);
Nelson, 26 So. 3d at 575. If the state fails to bring the defendant
to trial within this period, through no fault of the defendant, he
is “forever discharged from the crime.” Id.

- 26 -

Petitioner has not shown that the performance of either of
his defense attorneys was deficient for improperly asserting his
speedy trial rights.

Accordingly, Petitioner has not satisfied

the first prong of the Strickland ineffectiveness test.

The state

courts’ rejection of this claim was neither contrary to clearly
established

federal

law

nor

determination of the facts.

based

upon

an

unreasonable

Claim Two is denied pursuant to 28

U.S.C. § 2254(d).
C.
Petitioner

claims

that

Claim Three
the

victim

filed

an

affidavit

recanting her statement, and therefore, he is actually innocent of
the crime to which he pleaded nolo contendere (Doc. 20 at 7).
Petitioner raised this claim in his third Rule 3.850 motion, and
it was denied by the post-conviction court on the ground that two
other people had witnessed “the operative events of the crime for
which Defendant was charged . . . and that prior to the entry of
Defendant's nolo contendere plea, the defense knew the victim had
already vacillated.” (Ex. 35 at 4).

The post-conviction court’s

rejection of Claim Three was affirmed by Florida’s Second District
Court of Appeal (Ex. 37).
Petitioner does not explain how the state courts’ rejection
of Claim Three was contrary to clearly established federal law or
based upon an unreasonable determination of the facts.

In his

reply, Petitioner urges for the first time that his “fundamental

- 27 -

rights” were violated under United States v. Olano, 113 S. Ct.
1770 (1992) 6 because the victim’s recantation proves that he is
actually innocent.
Respondent argues that a claim of actual innocence based upon
alleged newly discovered evidence has never been held to state a
ground

for

federal

constitutional

habeas

violation

relief

occurring

absent
in

the

an

independent

underlying

state

criminal proceeding (Doc. 26 at 16-17) (citing Herrara v. Collins,
506 U.S. 390, 400-01 (1993)).

Indeed, the United States Supreme

Court has recognized that “the existence merely of newly discovered
evidence relevant to the guilt of a state prisoner is not a ground
for relief on federal habeas corpus.” Townsend v. Sain, 372 U.S.
293, 317 (1963), overruled on other grounds by Keeney v. TamayoReyes, 504 U.S. 1 (1992), superseded by statute as stated in
Williams,

529

“freestanding”

U.S.
claim

at
of

433.

actual

Accordingly,

innocence

warrants

Petitioner’s
no

federal

habeas corpus relief.

6

In Olano, the United States Supreme Court differentiated
between the legal concepts of forfeiture and waiver. 507 U.S. 725
(1993). The Court found that if a legal rule was violated during
district court proceedings and the defendant had not specifically
waived the rule, there was an error within the meaning of Rule
52(b) of the Federal Rules of Criminal Procedure, even if no
objection was made. Id.
Olano did not apply to state court
proceedings, and did not address allegations of actual innocence
based upon a victim’s recantation.

- 28 -

Even if considered on the merits, the claim must be denied.
To establish actual innocence, a petitioner must show “that it is
more likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt.” Schlup, 513 U.S. at
327. 7

The claim must be supported by “new reliable evidence . . .

that was not presented at trial.” Id. at 324.

In the instant

case, the victim’s affidavit is not “new reliable evidence” of
Petitioner’s

innocence.

First,

as

noted

by

the

state

post-

conviction court, the evidence is not new because Petitioner was
well aware of his five-year-old niece’s vacillation before he
pleaded nolo contendere to the attempted sexual battery charge. In
his March 16, 2006 objection to the state’s notice of intention to
introduce the victim’s hearsay statements, Petitioner argued that
“[t]he alleged hearsay statements are contrary to information
received from the child at deposition[.]” (Ex. 35 at 39).
courts

considering

similar

affidavits

have

rejected

Next,

them

as

unreliable and insufficient to support a claim of actual innocence.
See Arthur v. Allen, 452 F.3d 1234, 1246 (11th Cir. 2006) (11thhour exculpatory affidavits are suspect); Bosley v. Cain, 409 F.3d
657, 665 (5th Cir. 2005) (rejecting actual innocence claim where

7

In federal habeas, a claim of actual innocence merely
“serves as a ‘gateway’ to get the federal court to consider claims
that the federal court would otherwise be barred from hearing.”
Rozzelle v. Sec'y, Fla. Dep't of Corr., 672 F.3d 1000, 1011 (11th
Cir. 2012).

- 29 -

new evidence consisted only of testimony from four relatives of
the petitioner); Mize v. Hall, 532 F.3d 1184, 1197 (11th Cir. 2008)
(“affidavits alone are not a promising way to demonstrate actual
innocence. Though sworn, they are not convincing evidence of
innocence because ‘the affiants’ statements are obtained without
the

benefit

of

cross-examination

and

an

opportunity

to

make

credibility determinations.’”)(quoting Herrera, 506 U.S. at 417).
Finally, Petitioner has not established that it is more likely
than not that no juror would have convicted him in light of the
five-year old victim’s recantation.

Two adult witnesses described

the behavior they observed that lead to Petitioner’s arrest and
plea (Ex. 5; Ex. 6).

Given the explicit details provided by these

witnesses, see discussion supra Claim One and Exhibits Five and
Six, Petitioner has not established that no reasonable juror would
have chosen to believe them instead Petitioner’s version of the
events.
Petitioner has not shown that the state court's adjudication
of this claim involved an unreasonable application of clearly
established federal law or that it was based on an unreasonable
determination of the facts.

Therefore, Claim Three does not

warrant federal habeas corpus relief.
D.
Petitioner

asserts

that

Claim Four
the

state

attorney

possessed

an

exculpatory laboratory report from the Florida Department of Law

- 30 -

Enforcement (“FDLE”) prior to his October 9, 2007 plea colloquy,
and had he known of the report, he would not have accepted the
state’s plea offer (Doc. 20 at 9).
a

claim

of

ineffective

In his reply, Petitioner adds

assistance

of

counsel

for

failing

to

discover the FDLE test results prior to the plea colloquy (Doc. 29
at 10). 8
To

support

his

claim

that

the

state

prosecutor

was

in

possession of exculpatory evidence, Petitioner attaches to his
petition an August 23, 2005 crime scene report supplement stating
the following:
On Monday, August 22, 2005, a blue blanket and
blue towel, that were secured and left to dry
in the Drying Chamber was [sic] processed for
the presence of blood and/or semen.
Both
items were photographed prior to processing,
in their original state.
After which, the
blue towel was scanned for the presence of
semen with the Omni Chrome using 450 nm band
pass filter with positive results. The towel
was
then
photographed
under
fluorescent
lighting and the Omni Chrome 450 nm, with and
without scale.
An area of suspected blood on the towel was
processed with the use of a presumptive blood
test, with results that were positive for the
presence of blood. In addition the areas of
suspected semen were tested with presumptive
8

Arguments or claims raised for the first time in a reply
brief are not properly before a reviewing court. Herring v. Sec’y,
Fla. Dep’t of Corr., 397 F.3d 1338, 1342 (11th Cir. 2005); United
States v. Whitesell, 314 F.3d 1251, 1256 (11th Cir. 2002) (Court
need not address issue raised for first time in reply brief).
However, because Petitioner’s Brady claim is intertwined with his
Strickland claim, the Court will address the merits of the latter.
See discussion infra Claim Four.

- 31 -

semen tests, with positive results for the
presence of semen.
A blood swab was then
obtained from the towel, along with a standard
swab of distilled water.
Three semen swabs
were then obtained from the towel from three
different areas, along with a standard swab.
The blue blanket was scanned with the Omni
Chrome using 450 nm band pass filter for the
presence of semen with negative results.
Disposition of Evidence:
The items were
packaged
and
submitted
into
the
CCSO
Property/Evidence Section, along with the
blood and semen swabs.
(Doc. 1-1 at 3).

Petitioner also attaches a September 28, 2007

FDLE report stating that swabs taken from the blue towel found at
the

crime

scene

failed

to

give

chemical

presence of semen or blood. Id. at 4.

indications

for

the

It does not appear that the

blue blanket described in the crime scene report supplement was
chemically tested.

Petitioner asserts that, had he been aware of

the 2007 FDLE report, “he would not have entered a plea and would
have insisted on his right to a jury trial.” (Doc. 20 at 9).
Petitioner raised this claim in his third Rule 3.850 motion
(Ex. 33).

The post-conviction court first determined that no

violation occurred under Florida law because this evidence could
have been discovered with due diligence (Ex. 35 at 5).

The Court

then denied the claim as improperly raised under Rule 3.850:
Defendant seems to be asserting a claim of
prosecutorial misconduct for the suppression
of the FDLE reports.
Notably, substantive
issues
of
prosecutorial
misconduct
are
inappropriately raised under rule 3.850.
Spencer v. State, 842 So. 2d 52 (Fla. 2003)

- 32 -

(substantive
claims
of
prosecutorial
misconduct could and should have been raised
on direct appeal and thus are procedurally
barred from consideration in a postconviction
motion); Kijewski v. State, 831 So. 2d 757
(Fla. 4th DCA 2002) (appellant’s claim
alleging
prosecutorial
misconduct
is
inappropriate for a rule 3.850 motion for
postconviction relief).
Accordingly, Ground
3 is without merit, does not qualify as newly
discovered evidence, and is not cognizable in
a motion for postconviction relief.
Id.

Florida’s Second District Court of Appeal affirmed (Ex. 37).

A review of the record supports the state courts’ rejection of
Claim Four.
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the United
States Supreme Court held that “the suppression by the prosecution
of evidence favorable to an accused . . . violates due process
where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.”
In order to establish a Brady violation, “a defendant must prove:
(1)

that

the

government

possessed

evidence

favorable

to

the

defense, (2) that the defendant did not possess the evidence and
could not obtain it with any reasonable diligence, (3) that the
prosecution suppressed the evidence, and (4) that a reasonable
probability exists that the outcome of the proceeding would have
been different had the evidence been disclosed to the defense.”
United States v. Schier, 438 F.3d 1104, 1106 n.1 (11th Cir. 2006)
(citing Moon v. Head, 285 F.3d 1301, 1308 (11th Cir. 2002)).

- 33 -

“[N]either mere speculation that the prosecution might possess
information helpful to the defense nor base assertions, without
more,

of

the

prosecution's

presence
files

would

of

exculpatory

be

sufficient

information
to

warrant

in
a

the
Brady

determination.” Brown v. United States, Case No. 3:02–cr–14, 2006
WL 1582421, at *2 (M.D. Ga. June 5, 2006) (quoting 25 James Wm.
Moore et al., Moore's Federal Practice § 616.06[2] (3d ed.1997)).
Under these rules, Petitioner has not established that a Brady
violation occurred.
First, the record does not support Petitioner’s claim that
the 2007 FDLE report was suppressed by the prosecutor or that he
could not have obtained the report with due diligence.

At the

plea hearing, the parties discussed whether DNA evidence existed
linking Petitioner to the crime:
STATE:

Okay, [Counsel]. As defense counsel
in this case, would you stipulate,
for the purposes of the plea,
there’s a factual basis and venue
lies properly – properly in Collier
County?

COUNSEL:

Yes, I do.

STATE:

Additionally, there – there was some
DNA testing done in which there were
no results and – and I think you
indicated earlier that there were
some other DNA testing done that we
do not have results, and the
understanding is he’s entering this
plea knowing that at the very least
there is no DNA evidence linking him
to the crime.

- 34 -

COUNSEL:

Yeah.
If I
specific - -

could

just

be

more

STATE:

Sure.

COUNSEL:

-- I would explain.
The – the
police officers that took the – the
DNA
–
in
particular
the
CSI
personnel, took swabs of Tommy’s
mouth, out – external area, and his
hands shortly after the actual
incident allegedly occurred.
They
would have those, and they put ‘em
into storage. They have never been
tested by the FDLE. Those would be
potentially exculpatory if they
came back with negative findings.
And that’s why we have to make the
reference that I cannot say on the
record that I’m not aware of any DNA
evidence
that
would
exculp—
exonerate my defendant, but I have
to just tell him that he – he’s
aware of this and he’s still
entering the plea.

STATE:

Is that correct, sir? Knowing all
this, you’re still entering the
plea?

PETITIONER: Yes.
(Ex.

8

at

20-21)

(emphasis

added).

The

prosecutor

informed

Petitioner that “there was some DNA testing done in which there
were no results.” Id. at 20.

This statement may well have been

directed towards the September 28, 2007 FDLE report finding no
“chemical indications for the presence” of semen or blood on the
blue towel taken from the crime scene (Doc. 1-1 at 4).

The same

report indicated that “no analysis was performed on” two standard
swabs that were also submitted to the FDLE for testing. Id.

- 35 -

Because the state prosecutor’s statements at trial were consistent
with the allegedly suppressed report, the record does not indicate
that the state intentionally suppressed exculpatory evidence.
Even

assuming

suppressed

the

arguendo

FDLE

resulting prejudice.
be

“a

reasonable

report,

the

state

Petitioner

inadvertently

cannot

demonstrate

To find prejudice under Brady, there must

probability”

evidence been produced.
(1995).

that

of

a

different

result

had

the

Klyes v. Whitley, 514 U.S. 419, 422

The evidence linking Petitioner to the crime consisted

of the statements of two eyewitnesses who described Petitioner’s
actions

towards

statement

to

the

child

victim

in

protective

great

detail

services.

and

the

Neither

victim’s

eyewitness

attested in their sworn statements that Petitioner ejaculated
during his molestation of the victim, and neither attested that
the victim or Petitioner was bleeding during the molestation.
Therefore, the absence of blood or semen on the blue towel was not
surprising—particularly

given

that

FDLE

reports

from

May

and

December of 2006 (of which Petitioner does not claim he was unware)
showed negative results for semen when tests were performed on the
victim’s clothing and on swabs from the victim’s perihymenal and
labia major areas.

Moreover, Counsel explained to Petitioner that

some of the evidence had not yet been tested for DNA, and the state
prosecutor specifically stated that “there is no DNA evidence
linking [Petitioner] to the crime scene.”

- 36 -

However, Petitioner

still chose to enter his plea (Ex. 8 at 21).

Petitioner’s current

assertion that he would have proceeded to trial on the original
information and faced life in prison had he realized that the FDLE
did not find blood or semen on the blue towel is not credible, and
Petitioner does not show prejudice under the standard of review
applicable to Brady claims.

Accordingly, he is not entitled to

federal habeas corpus relief on Claim Four.
Likewise, Petitioner cannot demonstrate Strickland prejudice
from Counsel’s alleged failure to “ascertain[] the DNA test results
from the Florida Department of Law Enforcement.” (Doc. 29 at 10).
While the prejudice standard in Kyles concerned the suppression of
evidence

under

Brady,

the

test

for

showing

prejudice

under

Strickland and “materiality” under Brady are basically the same.
See Strickland, 466 U.S. at 694 (“The defendant must show that
there

is

a

reasonable

probability

that,

but

for

counsel's

unprofessional errors, the result of the proceeding would have
been different.”); id. (“[T]he appropriate test for prejudice
finds

its

roots

in

the

test

for

materiality

of

exculpatory

information not disclosed to the defense by the prosecution.”).
Accordingly, the Court’s conclusion that Petitioner cannot show
Brady prejudice under Kyles also disposes of the ineffective
assistance claim raised in Petitioner’s reply.
Any of Petitioner's allegations not specifically addressed
herein have been found to be without merit.

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IV.

Certificate of Appealability 9

Petitioner is not entitled to a certificate of appealability.
A

prisoner

seeking

a

writ

of

habeas

corpus

has

no

absolute

entitlement to appeal a district court's denial of his petition.
28 U.S.C. § 2253(c)(1).

Rather, a district court must first issue

a certificate of appealability (“COA”).

“A [COA] may issue . . .

only if the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such
a showing, Petitioner must demonstrate that “reasonable jurists
would find the district court's assessment of the constitutional
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282
(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or
that “the issues presented were ‘adequate to deserve encouragement
to proceed further,’” Miller–El, 537 U.S. at 335–36.

Petitioner

has not made the requisite showing in these circumstances.
Because

Petitioner

is

not

entitled

to

a

certificate

of

appealability, he is not entitled to appeal in forma pauperis.
Accordingly, it is hereby
ORDERED AND ADJUDGED as follows:

9

Pursuant to Rule 11(a) of the Rules Governing Section 2254
Cases in the United States District Courts, the “district court
must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” Id. As this Court has
determined that Petitioner is not entitled to habeas corpus relief,
it must now consider whether Petitioner is entitled to a
certificate of appealability.

- 38 -

1.

The Florida Attorney General is DISMISSED as a named

Respondent.
2.

Claim One of the 28 U.S.C. § 2254 petition for habeas

corpus relief is dismissed as unexhausted.

The remaining claims

are denied on the merits.
3.

Petitioner is DENIED a certificate of appealability.

4.

The Clerk of Court is directed to terminate any pending

motions, enter judgment accordingly, and close this case.
DONE and ORDERED in Fort Myers, Florida on this
of December, 2016.

SA: OrlP-4
Copies: Tommy Rae Bryant
Counsel of Record

- 39 -

20th

day