Enriquez v. Secretary, Department of Corrections et al

Filing 23

OPINION AND ORDER re: 1 Petition for writ of habeas corpus. The Florida Attorney General is dismissed as a named Respondent. Claims One, Two, Three, Six, and Seven of the 28 U.S.C. 2254 petition for habeas corpus relief filed by Javier Enrique z are dismissed; alternatively, these claims are denied. Claims Four and Five are denied. Petitioner is denied a certificate of appealability as to Claims One, Two, Three, Five, Six, and Seven. Petitioner is granted a certificate of appealability as to Claim Four. The Clerk of Court is directed to terminate any pending motions, enter judgment accordingly, and close this case. Signed by Judge Sheri Polster Chappell on 8/13/2015. (drn)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAVIER ENRIQUEZ,
Petitioner,
v.

Case No: 2:14-cv-85-FtM-38MRM

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

1

/
OPINION AND ORDER2
This matter comes before the Court upon a petition for habeas corpus relief filed
pursuant to 28 U.S.C. § 2254 by Javier Enriquez (“Petitioner”), a prisoner presently
confined at the Blackwater River Correctional Facility in Milton, Florida (Doc. 1, filed
February 10, 2014). Petitioner attacks the convictions and sentences entered by the
Twentieth Judicial Circuit Court in Lee County, Florida for two counts of capital sexual

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.
2

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Web sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some
other site does not affect the opinion of the court.

battery and two counts of lewd and lascivious molestation. Id.

Respondent filed a

response to the petition (Doc. 14). Petitioner filed a reply (Doc. 21).
Petitioner raises seven claims in his petition.

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 can be resolved on the basis of 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.

Background and Procedural History
On August 20, 2006, Petitioner was charged by amended information with four

counts of sexual battery on a child less than twelve years of age and two counts of lewd
or lascivious molestation (Ex. 1 at 51-52).3 After a jury trial, the court entered a judgment
of acquittal on two counts of sexual battery, and Petitioner was found guilty on the
remaining counts (T. at 317; Ex. 1 at 67-68). Petitioner was sentenced to life in prison
on the sexual battery charges and to concurrent terms of twenty-five years in prison on
the lewd and lascivious battery charges (Ex. 1 at 108-110). Florida’s Second District
Court of Appeal per curiam affirmed Petitioner's convictions and sentences (Ex. 6).
On October 19, 2010, Petitioner filed a motion pursuant to Rule 3.850 of the Florida
Rules of Criminal Procedure in which he raised five claims of ineffective assistance of
counsel (“Rule 3.850 motion”) (Ex. 8). The post-conviction court denied all the claims
(Ex. 11). Florida’s Second District Court of Appeal per curiam affirmed (Ex. 13).

3

Citations to exhibits or volumes are to those filed by Respondent on August 25,
2014 (Doc. 17). Citations to the trial transcript, located in exhibit two will be cited as (T.
at ___).

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Petitioner filed a state habeas petition in which he raised three claims of ineffective
assistance of appellate counsel. Florida’s Second District Court of Appeal denied the
petition without seeking a response from the state (Ex. 16).
Petitioner filed the instant petition on February 5, 2014 (Doc. 1).
II.

Governing Legal Principles
A.

Standard of Review Under 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). This standard is both mandatory and difficult to meet. White v.
Woodall, 134 S. Ct. 1697, 1702 (2014). A state court’s summary rejection of a claim,
even without explanation, qualifies as an adjudication on the merits which warrants
deference. Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). 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, 412 (2000)).

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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 manner,
Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d 526, 531 (11th
Cir. 2000), or “if the state court either unreasonably extends a legal principle from
[Supreme Court] precedent to a new context where it should not apply or unreasonably
refuses to extend that principle to a new context where it should apply.” Bottoson, 234
F.3d at 531 (quoting Williams, 529 U.S. at 406). 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,

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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); Burt v. Titlow, 134 S. Ct. 10,
15 (2013) (“[A] state-court factual determination is not unreasonable merely because the
federal habeas court would have reached a different conclusion in the first instance.”)
(quoting Wood v. Allen, 558 U.S. 290, 293 (2010)).
B.

Standard for Ineffective Assistance of Counsel

In Strickland v. Washington, the Supreme Court established a two-part test for
determining whether a convicted person is entitled to relief on the ground that his counsel
rendered ineffective assistance. 466 U.S. 668, 687-88 (1984).

A petitioner must

establish that counsel’s performance was deficient and fell below an objective standard
of reasonableness and that the deficient performance prejudiced the defense. Id. This
is a “doubly deferential” standard of review that gives both the state court and the
petitioner’s attorney the benefit of the doubt. Burt, 134 S. Ct. at 13 (citing Cullen v.
Pinholster, 131 S. Ct. 1388, 1403 (2011)).
The 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.

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Indeed, the petitioner bears the heavy burden to “prove, by 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 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.
A reasonable probability is “a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694.
C.

Exhaustion and Procedural Default

The AEDPA 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 “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

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considering claims that are not exhausted but 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 on adequate and independent procedural grounds under state law. 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 claim in federal court. Alderman v.
Zant, 22 F.3d 1541, 1549 (11th Cir. 1994).
Procedural default will be excused only in two narrow circumstances. First, a
petitioner may obtain federal review of a procedurally defaulted claim if he can show both
“cause” for the default and actual “prejudice” resulting from the default. “To establish
cause for a procedural default, 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) (internal quotation marks omitted). To
establish prejudice, a petitioner must show that there is at least a reasonable probability
that the result of the proceeding would have been different. Henderson v. Campbell, 353
F.3d 880, 892 (11th Cir. 2003).
The 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[.]” Murray v. Carrier, 477 U.S. 478, 47980 (1986). Actual innocence means factual innocence, not legal insufficiency. Bousley

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v. United States, 523 U.S. 614, 623 (1998). 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). In addition, “[t]o be
credible, a claim of actual innocence 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
A.

Claim One

Petitioner asserts that the evidence was insufficient to establish that he committed
the crimes charged in counts six and seven of the information (Doc. 1 at 4).4 Specifically,
Petitioner asserts that the testimony at trial did not support a conclusion that he touched
the victim’s vagina in a lewd or lascivious manner on two separate occasions. Id. at 7.
He also argues that the information alleges that he touched the victim’s vagina in a lewd
or lascivious manner whereas the evidence put forth at trial indicated that he only touched
the victim’s vagina through her pajamas. Petitioner raised this claim on direct appeal,
and it was rejected by the appellate court (Ex. 6).
Respondent asserts that this claim is unexhausted because, although Petitioner

4

Grounds six and seven of the amended information are identical and allege that
Petitioner:
On or About or Between April 1, 2007 and May 8, 2007 in Lee
County, Florida, being 18 years of age or older did
intentionally touch in a lewd or lascivious manner vagina, of a
person, L.O. less than 12 years of age, or forced or enticed a
person, L.O., under 12 years of age to so touch the
perpetrator, contrary to Florida Statute 800.04(5)(b).
(Ex. 1 at 52).

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raised it on direct appeal, he did so in terms of state law only (Doc. 14 at 27). Indeed, a
review of Petitioner's brief on direct appeal indicates that he argued the merits only as a
claim of insufficient evidence under Florida law (Ex. 3). Specifically, Petitioner claimed
that Florida Statute § 800.04(5)(b) provides that lewd or lascivious molestation occurs
when a person “intentionally touches in a lewd or lascivious manner ‘the breasts, genitals,
genital area, or buttocks, or the clothing covering them, of a person less than 16 years
of age . . .’” (Ex. 3 at 30) (emphasis in original). However, Petitioner asserted that the
information was defective because it did not include the language referencing clothing.5
Before a federal court may grant habeas relief, the petitioner must exhaust every
available state court remedy for challenging his conviction, either on direct appeal or in a
state post-conviction motion. 28 U.S.C. § 2254(b); Henderson, 353 F.3d at 891 (“A state
prisoner seeking federal habeas relief cannot raise a federal constitutional claim in federal
court unless he first properly raised the issue in the state courts.”).

The prohibition

against raising an unexhausted claim in federal court extends to both the legal theory of
relief and to the specific factual contention that supports relief. Kelley v. Sec'y for Dep't of
Corr., 377 F.3d 1317, 1344 (11th Cir. 2004). Petitioner's state law arguments presented
on direct appeal leave the exhaustion requirement unsatisfied. Duncan, 513 U.S. at 365;
see also Pearson v. Sec’y, Dept. of Corr., 273 F. App’x 847 (11th Cir. 2008) (claim
unexhausted when petitioner cited exclusively to state cases, all of his substantive

To the extent Petitioner now argues that the state courts’ rejection of Claim One
was based upon a misapplication of Florida law, the claim is not cognizable on habeas
review. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief
does not lie for errors of state law[.]”).
5

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arguments addressed state law, and nothing in the argument alerted the state court to a
federal due process claim).
Petitioner has not alleged that some external factor impeded his efforts to raise the
constitutional aspect of this claim on direct appeal. Wright, 169 F.3d at 703. Nor has
Petitioner presented new, reliable evidence not presented at trial that would support an
actual innocence claim. Schlup, 513 U.S. at 324. Florida’s procedural rules and time
limitations preclude a second direct appeal. Fla. R. App. P. 9.140(b)(3) (defendant
wishing to appeal a final judgment must do so within “30 days following rendition of a
written order”). Consequently, Claim One is both unexhausted and procedurally barred
and cannot be considered by this Court.
Even assuming that Petitioner's appellate brief exhausted this claim, Claim One
fails on the merits. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus
may be denied on the merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.”).

The Due Process Clause of the

Fourteenth Amendment requires the state to prove each element of the offense charged
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 315 (1979).

Under

Jackson, federal courts must look to state law for the substantive elements of the offense,
but to federal law for the determination of whether the evidence was sufficient under the
Due Process Clause. Coleman v. Johnson, 132 S. Ct. 2060, 2064 (2012). For federal
due process review, “[t]he relevant question is whether after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319.
Petitioner was convicted on two counts of lewd and lascivious molestation under
Florida Statute § 800.04. This statute reads in pertinent part:

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A person who intentionally touches in a lewd or lascivious
manner the breasts, genitals, genital area, or buttocks, or the
clothing covering them, of a person less than 16 years of age,
or forces or entices a person under 16 years of age to so touch
the perpetrator, commits lewd or lascivious molestation.
Fla. Stat. § 800.04(5)(a) (2006).

Accordingly, to prove Petitioner guilty of lewd or

lascivious molestation, the state needed to prove beyond a reasonable doubt that: (1)
the victim was under the age of sixteen; and (2) Petitioner intentionally touched the
victim’s breasts, genitals, genital area, or buttocks, or the clothing covering those areas.
Although the “or the clothing covering them” verbiage was not included in the information,
the Florida Supreme Court has specifically held that “the failure to include an essential
element of a crime [in a charging document] does not necessarily render an indictment
so defective that it will not support a judgment of conviction when the indictment
references a specific section of the criminal code which sufficiently details all the elements
of the offense.” DuBoise v. State, 520 So. 2d 260, 265 (Fla. 1988). By referencing the
statute under which he was charged, the state afforded Petitioner notice of the elements
of lewd and lascivious molestation.
Moreover, there was sufficient evidence to show that Petitioner violated § 800.04
on more than one occasion. During trial, testimony was presented from the victim that
Petitioner would sometimes wake her up in the mornings, get in bed with her and touch
her genital area (T. at 185). On direct examination, the state asked:
STATE:

Do you know how many times he did that?

A.

No.

Q.

Was it more than once?

A.

I guess so.

Id. On cross examination, the victim testified that her sister would sometimes get into

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the bed with her and Petitioner (T. at 198). When asked how many times Petitioner had
touched her when her sister was not in her bed, the victim testified, “I guess two or three.”
Id. at 199.

Despite the purported inconsistencies or equivocation in the victim’s

testimony, the jury chose to believe that Petitioner had committed more than one offense
under § 800.04 and convicted Petitioner on two separate counts of lewd and lascivious
molestation.
Given the victim’s testimony, a rational trier of fact could have found the essential
elements of lewd and lascivious molestation beyond a reasonable doubt. The state court
did not unreasonably apply Jackson in rejecting this claim, and its determination must be
respected under the AEDPA. Accordingly, in addition to being unexhausted, Claim One
fails on the merits.
B.

Claim Two

Petitioner asserts that the evidence was insufficient to support his conviction on
ground three of the amended information (Doc. 1 at 8). Specifically, he asserts that the
information alleged that Petitioner's tongue had union with or was inserted into the victim’s
vagina whereas the victim’s testimony at trial was that Petitioner put his mouth on her
vagina. Id. at 8. Petitioner asserts that he “should not be sentenced to life in prison when
the prosecutor failed to ask the right question of [the victim] when she testified.” Id. at 9.
Petitioner raised this claim on direct appeal, and it was rejected by the appellate
court (Ex. 6). In his brief on direct appeal, Petitioner recognized that the child victim had
told the CPT interviewer that Petitioner had put his tongue in her vagina, but argued, in
terms of state law only, that this hearsay statement was insufficient to support his
conviction (Ex. 3 at 34-40). Because Petitioner did not brief the constitutional dimension
of this claim on direct appeal, Claim Two suffers from the same exhaustion deficiency as

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Claim One. See discussion supra Claim One.
Even assuming that Claim Two is exhausted, Petitioner has not demonstrated an
entitlement to relief under Jackson. The charging information for count three asserted
that:
On or About or Between March 01, 2007 and May 08, 2007 in
Lee County, Florida, being eighteen years or older, did
unlawfully commit a sexual battery upon L.O., a child less than
12 years of age, by inserting and/or having union with his
tongue to child’s vagina, contrary to Florida Statute
794.011(2).
(Ex. 1 at 51). Section 794.011 defines sexual battery in pertinent part as “oral, anal, or
vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal
penetration of another by any other object[.]” Fla. Stat. § 794.011(1)(h).

The state

presented evidence of each element alleged in count three.
Evidence was presented at trial that the victim was either seven or eight years old
at the time of the battery (T. at 174, 178). Petitioner testified that he was 43 years old.
Id. at 320. Also, the victim testified that, on the same night Petitioner inserted his fingers
into her vagina, he turned her “upside down” and “started putting his mouth in [her]
underpart.” Id. at 181. A video of the victim’s interview with the Child Protective Team
(“CPT”) was also played for the jury at trial. Id. at 273-301. In the video, the victim told
the interviewer that Petitioner put his tongue in her vagina. Id. at 289-90.6

6

In Florida, statements of child victims of sexual abuse are not considered
hearsay and may be admitted as evidence if “[t]he court finds in a hearing conducted
outside the presence of the jury that the time, content, and circumstances of the statement
provide sufficient safeguards of reliability. Fla. Stat. § 90.803(23) (2006). There was a
hearing on this issue and the judge ruled that as long as the child testified, the CPT
interview was admissible (T. at 271-72); Ex. 11 (transcript of child hearsay hearing at
page 69) (noting that “the eight-year-old clearly meets the criteria of 803.23.”).
Accordingly, the jury was allowed to consider the victim’s videotaped interview as
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A rational trier of fact could have found beyond a reasonable doubt that Petitioner
put his tongue on or in the victim’s vagina and therefore, satisfied each element of the
sexual battery charge alleged in count three. The state court did not unreasonably apply
Jackson in rejecting this claim. In addition to being unexhausted, Claim Two fails on the
merits.
C.

Claim Three

Petitioner asserts that the trial court committed reversible error when it denied his
motion for a judgment of acquittal on counts two, three, six, and seven because the
prosecution failed to prove that the crimes occurred during the time period alleged in the
second amended information (Doc. 1 at 2).

Specifically, Petitioner asserts that the

information provided that the crimes alleged in counts two and three occurred between
March 1, 2007 and May 8, 2007 while the crimes alleged in counts six and seven occurred
between April 1, 2007 and May 8, 2007. Id. However, at trial, the victim was unsure of
the exact dates the crimes and indicated that they may have occurred the previous fall,
when she was seven years old. Id. at 10-11.
Petitioner raised this claim on direct appeal where it was rejected by the appellate
court (Ex. 3; Ex. 6). Petitioner did not brief the constitutional dimension of this claim on
direct appeal. Accordingly, Claim Three suffers from the same exhaustion deficiency as
Claims One and Two. See discussion supra Claim One. However, even if Claim Three
was exhausted, Petitioner is not entitled to federal habeas corpus relief.
Petitioner has not identified any clearly established federal law indicating that a
defendant’s constitutional rights are violated by a discrepancy or error in a defendant’s

substantive evidence of guilt.

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charging instrument that otherwise adequately apprises the defendant of the charges
against him. 7

To the contrary, the limited case law that has addressed the subject

suggests that a variance between the date alleged and the date proved will not trigger
reversal as long as the date proved falls within the statute of limitations and before the
return of the indictment. See United States v. Harrell, 737 F.2d 971, 981 (11th Cir. 1984);
United States v. Harris, 344 F.3d 803, 805 (8th Cir. 2003) (“A variance between the date
set forth in the indictment and the proof at trial is not fatal as long as the acts alleged were
committed within the statute of limitations and before the date of the indictment.”); United
States v. Nunez, 668 F.2d 1116 (10th Cir. 1981) (as long as the proof relating to the time
of possession fell within the statute of limitations periods, any variance between the date
alleged in the indictment and the proof at trial could be disregarded); United States v.
Wilson, 116 F.3d 1066, 1089 (5th Cir. 1997) (“A five-month variance between the date
alleged and the date proved is not unreasonable as a matter of law as long as the date
proven falls within the statute of limitations and before the return of the indictment”),
vacated in part on other grounds United States v. Brown, 161 F.3d 256, 256 n. 1 (5th Cir.
1998); Sparks v. State, 273 So. 2d 74, 75 (Fla. 1973) (“It is not even essential that the
date proved at trial be the date stated in the indictment or information.”).
Thus, the state appellate court’s denial of this claim was not an unreasonable
application of what the Supreme Court has said on the matter. See Russell v. United
States, 369 U.S. 749, 763-64 (1962) (recognizing that the sufficiency of an indictment is

7

Because the date of the offense is not a substantive or essential element of any
of the charged crimes, Jackson v. Virginia does not apply in this case. However, the
Sixth Amendment of the United States Constitution provides that the accused has the
right “to be informed of the nature and cause of the accusation[.]” U.S. Const. amend. VI.

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measured by whether “the indictment contains the elements of the offense intended to be
charged and sufficiently apprises the defendant of what he must be prepared to meet[.]”)
(internal quotations omitted). In addition to being unexhausted, Claim Three is denied
on the merits.
D.

Claim Four

Petitioner asserts that the trial court erred when it sua sponte cleared the
courtroom of all spectators before the alleged child-victims began to testify (Doc. 1 at 16).
Petitioner argues that the clearance violated the United State Supreme Court’s ruling in
Waller v. Georgia, 467 U.S. 39 (1984) because the court did not make findings adequate
to support the closure. Id. at 18-19.

Specifically, Petitioner points to the following

exchange during a bench conference outside the presence of the jury, just prior to the
victims’ testimony. The victim at issue was nine years old at the time of trial:
COURT:

This is a rape case, isn’t it?

COUNSEL: Yes.
COURT:

Underage child, why have you got all the
witnesses back there.

COUNSEL: Those are attorneys, Judge.
COURT:

I know, but they’re not involved in the case.

COUNSEL: They’re just watching. They were asked to
come down by my office because they’re taking
over my cases when I’m gone.
COURT:

She’s taking the cases?

STATE:

The first witness we’re calling, the courtroom
needs to be cleared.

COUNSEL: There’s been no motion to clear the courtroom.
COURT:

I don’t care about the motion, I care about the
children. If you can show me the statute that

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says you can bring in everyone from your office,
I’ll be glad to let them stay.
COUNSEL: Okay. But the burden is actually on the State
that they should get a closed courtroom and not
the other way around.
COURT:

I have certain obligations myself. You show
me where I should not close it, take a minute to
look at the statute, I’ll be glad not to close it.
Absent that, it’s going to be closed. I’ve got a
burden myself.

COUNSEL: The only statute I’ll be able to find is one saying
the State needs to make a motion to have it
closed.
COURT:

We’ve already got over that. I’m going to
conduct the trial whether you do it or not, I will
protect you if you miss when it comes to those
children.
Now – so assume I have the authority to do it,
now am I required to let in anyone you want to
let it, as long as they work for the public
defender’s office?

COUNSEL: It could be the State Attorney’s office, it could be
witness management, it could be anybody.
COURT:

You’re not telling me anything, ask them to
leave while these two girls testify.

COUNSEL: Your Honor –
COURT:

I’m telling you to ask them to leave.

COUNSEL: I would prefer the Court ask them to leave as
opposed to me.
COURT:

All right. I just don’t want to do it in front of the
jury, but if you want me to, I will.

COUNSEL: You don’t want to send the jury out for a few
minutes?
COURT:

Pardon? No. No.

COUNSEL: Your Honor, I just don’t like the –
- 17 -

COURT:

I’ll take care of it. Are they the first two?

STATE:

Yes.
(Whereupon, bench conference concluded.)

COURT:

Anyone not directly involved in this case
because of the nature of the case and the
requirement at this time will have to step outside
the courtroom.

(T. at 167-70). Respondent argues that there was no constitutional violation because
the trial court complied with Florida law when it cleared the courtroom of the people not
directly involved in the case (Doc. 14 at 34-37). Specifically, Florida Statute § 918.16
reads in relevant part:
[I]n the trial of any case, civil or criminal, when any person
under the age of 16 or any person with mental retardation as
defined in § 393.063 is testifying concerning any sex offense,
the court shall clear the courtroom of all persons except
parties to the cause, and their immediate families or
guardians, attorneys and their secretaries, officers of the
court, jurors, newspaper reporters or broadcasters, court
reporters, and, at request of the victim, victim or witness
advocates designated by the state attorney’s office.
Fla. Stat. § 918.16(1) (2006). Respondent acknowledges that in Waller v. Georgia, the
United States Supreme Court recognized a presumption in favor of an open trial.
However, Respondent asserts that “the Florida Legislature, in enacting [§ 916.16] took
into account the Waller factors in narrowly tailoring the statute to provide closure of only
portions of the trial and by exempting members of the press and other individuals who
have an interest in the proceedings from the statute.” (Doc. 14 at 36). Respondent’s
argument is well taken.
The right to a public trial is guaranteed by the Sixth Amendment and incorporated
against the States by the Fourteenth Amendment. See Waller, 467 U.S. at 39. In Globe
Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596, 609 n. 22 (1982) the
- 18 -

United States Supreme Court recognized that Florida Statute § 918.16, provides “for
mandatory exclusion of general public but not press during testimony of minor victims.”
457 U.S. at 609 n. 22. The Court wrote, “Of course, we intimate no view regarding the
constitutionality of [this statute].” Id. Accordingly, there does not appear to be a Supreme
Court case expressly addressing the constitutionality of statutes that require partial
closure of a courtroom when minor victims of sexual abuse testify.
Although the Supreme Court has determined that a defendant's right to public trial
is not absolute, there is a “presumption of openness.” Press–Enterprise Co. v. Superior
Court of Cal., 464 U.S. 501, 505 (1984).

To overcome this presumption and justify

closing the courtroom to the public during a criminal proceeding, four elements must be
satisfied: (1) the party seeking to close the proceedings must advance an overriding
interest that is likely to be prejudiced; (2) the closure must be no broader than necessary
to protect that interest; (3) the trial court must consider reasonable alternatives to closing
the proceeding; and (4) the trial court must make findings adequate to support the closure.
Waller, 467 U.S. at 48. These four Waller factors must be considered on a case-by-case
basis, because even a compelling interest such as “safeguarding the physical and
psychological well-being of a minor” cannot “justify a mandatory closure rule.” Globe, 457
U.S. at 607–08 (emphasis omitted).
The court’s concern with protecting young victims of sexual abuse is a compelling
interest of the State, satisfying the first Waller factor. See Clements v. State, 742 So. 2d
338, 341 (Fla. 5th DCA 1999) (“The Legislature, by enacting section 918.16, has found
that there is a compelling state interest in protecting younger children or any person with
mental retardation while testifying concerning a sexual offense.”); United States v. Yazzie,
743 F.3d 1278, 1287 (9th Cir. 2014) (“ensuring a child victim's ability to effectively

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communicate is [ ] a compelling higher value that can justify a closure.”); Bell v. Jarvis,
236 F.3d 149, 168 (4th Cir. 2000) (“[T]he state demonstrated an over-riding, compelling
interest in protecting a child victim from the embarrassment and trauma associated with
relating the details of multiple rapes and sexual molestation by a family member, meeting
the first Waller requirement[.]”); Maryland v. Craig, 497 U.S. 836, 851 (1990) (“[A] State's
interest in ‘the protection of minor victims of sex crimes from further trauma and
embarrassment’ is a ‘compelling’ one.”).
The second Waller factor is also satisfied. Unlike the situation in Waller, where
the trial court closed the courtroom for the entire seven-day suppression hearing without
considering the specific need for privacy, here all portions of the trial other than the minor
witnesses’ testimony were public. Because people who were involved in the case were
explicitly allowed to remain in the courtroom, and because the closure was only during
the two victims’ testimony, the partial closure was narrowly tailored to the interest of
protecting the two young children who testified. See Bell, 236 F.3d at 168 (Because the
compelling interest for closing the courtroom was the protection of the victim during her
testimony about petitioner's repeated sexual assaults of her, limiting the closure to her
testimony was imminently tailored to serve that interest.).
As to the third Waller factor, the trial court appeared to believe that it was required
by law to close the courtroom during the children’s’ testimony.

However, the court

specifically asked defense counsel to “assume” that he had discretion to keep the
courtroom open, and asked whether he was required to allow everybody into the
courtroom (T. at 168-69). Counsel argued that the court was indeed, required to do so.
Id. at 169 (arguing that the court was required to allow “anybody” in the courtroom).
While a court must “consider alternatives to closure even when they are not offered by

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the parties[,]” Presley v. Georgia, 558 U.S. 209, 214 (2010), Waller makes clear that trial
courts need consider only “reasonable alternatives” that are more narrowly tailored and
more protective of constitutional rights than the closure advocated by the government.
For instance, instead of closing an entire hearing, a trial court should consider the
reasonable alternative of “closing only those parts of the hearing that jeopardized the
interests advanced,” Waller, 467 U.S. at 48. Closing only part of the hearing is precisely
what the trial court did in this case. The alternative advanced by defense counsel (to
allow everyone to stay in the courtroom without limitation) was, in effect, no alternative,
and even in the instant petition, no reasonable alternative has been advanced by
Petitioner.8
Finally, the trial court made findings to support the closure. The court specifically
queried as to the nature of the case, noting that he cared about the children, and asked
that the courtroom be cleared of those not directly involved in the case. Although the

8

In Presley, over defense objection, the courtroom was closed during juror voir
dire to the single member of the public present in order to better accommodate the large
number of prospective jurors. Noting that “[n]othing in the record shows that the trial
court could not have accommodated the public,” the Supreme Court pointed out obvious
alternatives that were available and should have been considered sua sponte by the trial
court. Id. at 725.
How Presley applies when a child testifies at a criminal trial is far from clear. Prior
circuit court decisions have concluded that a trial judge is not required to consider sua
sponte alternatives to a temporary closure for the testimony of one witness, giving
reasons that were not implicated by the jury voir dire in Presley. See Bowden v. Keane,
237 F.3d 125, 131 & n. 3 (2d Cir. 2001) (“Once he has ordered a narrow closure, a trial
judge simply has no responsibility to assess other alternatives sua sponte”); Bell v. Jarvis,
236 F.3d 149, 170 (4th Cir. 2000) (“the trial judge is not in a superior position to suggest
alternatives which may be more acceptable to the defendant and his counsel”); Ayala v.
Speckard, 131 F.3d 62, 72 (2d Cir. 1997) (“we do not believe that the Supreme Court [in
Waller ] wanted trial judges selecting the alternative of limited closure to consider further
alternatives that themselves pose substantial risks to a fair trial for the defendant”).

- 21 -

trial court did not expressly state that the partial closure was necessary to facilitate the
children's testimony, its findings are clear in context. See United States v. Farmer, 32
F.3d 369, 371 (8th Cir. 1994) (“specific findings by the district court are not necessary if
we can glean sufficient support for a partial temporary closure from the record”).
Fair minded jurists could conclude that the trial court's rulings complied with the
factors set forth in Waller and that the court closure during the children's testimonies did
not violate Petitioner's Sixth Amendment right to a public trial. Accordingly, Petitioner is
not entitled to habeas relief on Claim Four.
E.

Claim Five

Petitioner asserts that defense counsel was ineffective for failing to ensure that the
jury was read the charging information after having been sworn (Doc. 1 at 19). Petitioner
asserts, without legal support, that “counsel had an absolute obligation to ensure that the
jury be read the charging information and to request that the jury be provided a copy
thereof.” (Doc. 1 at 20). Petitioner claims he was prejudiced because, “the jury was free
to speculate whatever date was provided.” Id.
Petitioner raised this claim in his Rule 3.850 motion, and it was denied by the postconviction court:
In the first allegation, Defendant alleged that trial counsel was
ineffective for failing to ensure that the jury was read the actual
Information and provided a copy of the Information for
deliberation. Defendant further alleged that without the
reading of the Information, the jury was free to speculate as
to whether the trial testimony supported the crimes charged
against Defendant. However, this allegation is without merit.
An indictment or information is not evidence against an
accused, but, rather, is the means by which the State charges
that a crime has been committed. Dougan v. State, 470 So.
2d 697, 701 (Fla. 1985). Furthermore, the Court in its
discretion may decide whether a copy of the information
containing the charges against the defendant be provided to

- 22 -

the jury during deliberation. Fla. R. Crim. P. 3.400(a)(1) (West
2008). In this case, the record showed that the Court
informed the jury of the charges against Defendant.
Furthermore, the Florida Supreme Court has held that in
regards to sexual battery cases, time is not a substantive part
of the charging document and that there properly could be a
variance between the dates proved at trial and those alleged
in the information. Tingley v. State, 549 So. 2d 649, 650 (Fla.
1989). Therefore, counsel could not have been ineffective
for failing to raise a meritless issue. See Teffeteller v. Duggar,
734 So. 2d 1009 (Fla. 1999).
(Ex. 11 at 2-3) (internal citations to the record omitted). Florida’s Second District Court of
Appeal per curiam affirmed (Ex. 13). A review of the record supports the state courts’
adjudication of this claim.
First, as discussed in Claim Three supra and properly noted by the post-conviction
court, the date of the victim’s molestation is not a substantive element of sexual battery
or lewd and lascivious molestation. See Tingley v. State, 549 So. 2d 649 (Fla. 1989).
Next, the Florida Supreme Court has specifically held that the only purpose of an
indictment or information is to apprise a defendant of the charge against him. Dougan v.
State, 470 So. 2d 697 (Fla. 1985) (“An indictment or information is not evidence against
an accused, but, rather, is nothing more or less than the vehicle by which the state
charges that a crime has been committed.”); Gould v. State, 974 So. 2d 441, 446 (Fla. 2d
DCA 2007) (recognizing that an information “is nothing more or less than a charging
document.”); Foster v. State, 778 So. 2d 906 (Fla. 2000) (“[T]he charging information
reflected nothing more than mere charges, not evidence, against [the defendant].”).
Given that there was no evidentiary value in the information, reasonable counsel could
have decided against asking the trial court to read the second amended information to
the jury or to allow a copy of thereof to be taken into deliberation.
Finally, the trial court properly instructed the jury that its verdict “must be based

- 23 -

solely on the evidence or the lack of evidence and upon the law. Please remember the
information, as I told you before, is not evidence and is not to be considered by you as
any proof of guilt.” (T. at 157, 371) (“It is to the evidence introduced upon this trial and to
it alone that you are to look for [] proof.”).9 Accordingly, Petitioner cannot demonstrate
prejudice because the jury would not have considered the information as evidence even
had it been apprised of its contents. Raulerson v. Wainwright, 753 F.2d 869, 876 (11th
Cir. 1985) (“Jurors are presumed to follow the law as they are instructed.”).
Petitioner has demonstrated neither deficient performance nor resulting prejudice.
Accordingly, Claim Five is denied pursuant to 28 U.S.C. § 2254(d).
F.

Claim Six

Petitioner asserts that defense counsel was ineffective for failing to move for a bill
of particulars to clarify the dates of the alleged sexual battery (Doc. 1 at 24-25).
Petitioner claims that he suffered prejudice from counsel’s failure because he was unable
to prepare an alibi defense to the charges. Id. Petitioner also argues that counsel’s
failure to move for the bill of particulars allowed “evidence of multiple sexual batteries that
were uncharged in the information” to be admitted at trial. Id. at 25.10
Petitioner admits that this claim is unexhausted, but argues that his procedural
default is excused under Martinez v. Ryan (Doc. 21). In Martinez v. Ryan, 132 S. Ct.

9

The trial court properly instructed the jury as to the elements of sexual battery (T.
at 366-69).
10

Counsel filed a motion in limine to address the second issue and a hearing was
held on the motion which was ultimately denied. See Ex. 1, Supp. 1. As such,
Petitioner's argument that counsel was ineffective for failing to argue against the inclusion
of testimony implicating Petitioner in prolonged sexual abuse of the victim is refuted by
the record and will not be further addressed by the Court.

- 24 -

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. 11

Even under Martinez, however, Petitioner must establish that his

underlying ineffective assistance claim is “substantial” before the default will be excused.
Martinez, 132 S. Ct. at 1318-19. He has not met this requirement; Petitioner has failed
to show that his underlying ineffective assistance claim is substantial – that is, that it has
“some merit.” Id. at 1318.
“The purpose of a bill of particulars is merely to give the defendant notice of the
particular acts relied upon by the state to establish the crime charged, that the defendant
may be fully advised of the nature and cause of the accusation against him, and that he
may have an opportunity to prepare his defense.” Middleton v. State, 76 So. 785, 787
(1917). The Florida Rules of Criminal Procedure require an information to state as
accurately as possible the time and place of the commission of the offense charged. Fla.
R. Crim. P. 3.140(d)(3). Counsel can move for a statement of particulars if the time and
date stated are too indefinite for counsel to prepare a defense. Fla. R. Crim. P. 3.140(n).
Petitioner speculates that he could have cobbled together an alibi defense had
counsel moved for a bill of particulars. However, he has presented this Court with no
evidence of an alibi defense for the dates at issue other than that already argued at trial.

11

In 2013, the Supreme Court confirmed that the Martinez ruling applied to
prisoners who technically had the ability to bring their ineffective assistance claims on
direct appeal of their conviction, but for all intents and purposes had to bring it in their first
habeas petition. Trevino v. Thaler, 133 S. Ct. 1911, 1921 (2013).

- 25 -

Vague and conclusory allegations are insufficient to support a claim for habeas relief. See
Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (vague, conclusory, speculative
and unsupported claims cannot support relief for ineffective assistance of counsel);
Gonzalez v. Knowles, 515 F.3d 1006, 1014-16 (9th Cir. 2008) (claims “grounded in
speculation” do not establish prejudice under Strickland); Sargent v. Armontrout, 841 F.2d
220, 226 (8th Cir. 1988) (“When seeking habeas relief, the burden is on the petitioner to
prove that his rights have been violated. Speculation and conjecture will not satisfy this
burden”).
Moreover, Petitioner does not explain how counsel’s failure to request a bill of
particulars prevented him from presenting an alibi defense. He could have (and did)
argue that he was not living at the victim’s house during the alleged dates of the crimes.
Finally, Petitioner was not “surprised” by the victim’s testimony at trial.

The victim

expanded the potential dates of the offenses in her deposition, which occurred at least
two months before Petitioner's trial. See Ex. 1, Supp. 1 at 242 (discussing the victim’s
deposition at a pre-trial hearing); Damron v. Florida, No. 8:07-cv-2287-T-30TBM, 2009
WL 1514269 (M.D. Fla. May 29, 2009) (statement of particulars would not have made a
difference in preparing a defense where the victim described incidents of sexual battery,
including approximate dates, in a deposition before trial).
Finally, defense counsel stressed to the jury during closing argument that the
victim’s testimony and the testimony of the victim’s mother did not make sense because
the testimony of both witnesses was inconsistent:
[The victims’ mother] told you that Javier was not living in the
home at the time these allegations were to have occurred.
She told you that they had not gotten back together, that he
would stop by sometimes and say hi.

- 26 -

And then she tried to change her story on the stand and say,
“oh, no. He would come over sometimes and he would
spend the night and he would wake the girls in the morning.”
That’s the first time she’s ever said anything like that.
As the state keeps saying, 18 months later she decides he
used to come over and spend the night, because in order to
have committed these allegations he has to have had spent
the night.
It doesn’t make any sense with the way the story had always
gone before that, which was, “We separated January of 2007
and we never got back together. He never moved back in.
He wasn’t in the house.”
The judge will read you some instruction a little bit later, and
one of those instructions is going to be that, “A reasonable
doubt may arise from the evidence, conflict in the evidence or
the lack of evidence.” And that’s an important instruction
because we have all of this in this case.
There are conflicts in the evidence. The dates that Nichole
spent – or that Luz spent, this actually occurred. When was
it? In the video she says the last time was April 10th. That
was just a day or two before the video. And that was in her
room
When she testified she said that the last time Javier touched
her was in August or November, and that she says was this
incident about watching the movie and then going into the
bathtub. She was very clear that that was the last time that
he had ever touch[ed] her.
In the video that incident supposedly happened after Easter.
She was very convinced of the dates on both of these
occasions, or at least the time frame. Nobody’s asking her to
say an exact date, but at least a consistent time frame should
be expected even of a seven year old. This is something she
says happened to her which was very traumatic. She’s going
to remember when it happened.
She talked to somebody about it shortly after it happened.
She said when it happened. And then now she comes in
here and gives a completely different version of when it
happened.
In the video she said she was eight years old when that
happened. That means it happened after January of 2007.

- 27 -

That means it happened after Javier wasn’t even living in the
home. When she came in here to testify she was convinced
it happened when she was seven years old. Which is it?
That’s a conflict in the evidence.
...
According to her, most of these allegations happened in the
morning after Javier moved out of the house and wasn’t living
there. He wasn’t staying there. You heard him testify, he
didn’t stay there after he moved. The first time [the victim’s
mother] ever said that he stayed there was in this courtroom.
She had a year and a half to come up with that and say, “Well,
he can’t molest my kids if he’s not staying in my house, so he
has to have been staying in my house at the time. So I have
to tell the jury that.”
(T. at 357-59).

Reasonable defense counsel could have strategically decided that

forcing the state to file a bill of particulars would eliminate counsel’s argument that the
witnesses’ inconsistent testimony should result in reasonable doubt. See Castillo v.
Sec’y, Fla. Dep’t of Corr.,722 F.3d 1281, 1285 n.2 (11th Cir. 2013) (“The relevant question
under Strickland's performance prong, which calls for an objective inquiry, is whether any
reasonable lawyer could have elected not to object for strategic or tactical reasons, even
if the actual defense counsel was not subjectively motivated by those reasons.”).
Petitioner cannot prove Strickland prejudice because the record does not establish
that the outcome of the proceeding would have been different had counsel asked for a
bill of particulars.

Moreover, Petitioner cannot demonstrate that counsel’s failure to

move for a bill of particulars was not based upon trial strategy. Therefore, Petitioner has
satisfied neither Strickland prong. Claim Six is not “substantial” so as to excuse the
procedural default of this claim.
Claim Six is dismissed as unexhausted and procedurally barred. Alternatively, it
is denied on the merits. See 28 U.S.C. § 2254(b)(2).

- 28 -

F.

Claim Seven

Petitioner asserts that trial counsel was ineffective for failing to raise a double
jeopardy claim as to the two counts of sexual battery and two counts of lewd and
lascivious acts (Doc. 1 at 26). Specifically, Petitioner argues that “[g]iven the vague
pleadings of the charging document and the indistinct and contradictory testimony of the
alleged victims in this case, it appears that the Lewd and Lascivious Acts derived from
the same incidents as the Sexual Battery Acts.” Id. at 27.
Petitioner admits that this claim is unexhausted, but argues that his procedural
default is excused under Martinez v. Ryan (Doc. 21). Respondent asserts that Martinez
cannot excuse Petitioner's failure to exhaust this claim because each of the counts
involved distinct and separate criminal acts:
Here, the sexual battery counts were predicated on Enriquez
digitally penetrating the victim’s vagina and his mouth having
union with the victim’s vagina. The lewd and lascivious
molestation charges involved separate acts of touching of the
victim’s vagina. There is no double jeopardy concern
because these acts are of a distinct character and type.
Counsel cannot be deemed ineffective for failing to raise a
non-meritorious issue.
(Doc. 14 at 50). Accordingly, argues Respondent, Petitioner has not shown that this
ineffective assistance claim is substantial so as to warrant review under Martinez. Id.
The Court agrees.
The United States Constitution contains a double jeopardy clause designed to
prevent a person from receiving multiple punishments for the same criminal offense.
Valdes v. State, 3 So.3d 1067, 1069 (Fla. 2009) (citing U.S. Const. amend. V; Art. I, § 9).
However, there is no constitutional prohibition against multiple punishments for different
offenses arising out of the same criminal episode where, as in the instant case, “the

- 29 -

offenses are predicated on more than one distinct act.” Sanders v. State, 101 So. 3d 373,
374 (Fla. 1st DCA 2012).
Here, Petitioner was convicted of two counts of sexual battery. The information
and jury verdict demonstrate that Petitioner's convictions were predicated on two distinct
acts: inserting his fingers into the victim’s vagina and placing his tongue on or into the
victim’s vagina (Ex. 1 at 51). Evidence was presented at trial that Petitioner digitally
penetrated the victim and subsequently performed oral sex on the victim on the same
evening. See discussion supra Claim Two; (T. at 176, 179, 181). Because the Florida
sexual battery statute may be violated in multiple, alternative ways, convictions for “sexual
acts of a separate character and type requiring different elements of proof” do not violate
double jeopardy because the acts are “distinct criminal acts that the Florida Legislature
has decided warrant multiple punishments.” State v. Meshell, 2 So.3d 132,135 (Fla.
2009); see also Saavedra v. State, 576 So.2d 953, 956-58 (Fla. 1st DCA 1991) (“[T]he
fact that the same victim is sexually battered in the same manner more than once in a
criminal episode by the same defendant does not conclusively prohibit multiple
punishments.”).
Petitioner was also convicted of two counts of lewd and lascivious molestation.
Similar to the sexual battery statute, the lewd or lascivious molestation statute also
provides multiple, alternative ways to violate the statute. Thus, the acts proscribed by the
lewd or lascivious molestation statute are distinct criminal acts that warrant multiple
punishments. See Roberts v. State, 39 So.3d 372, 374 (Fla. 1st DCA 2010).

The

charges for lewd and lascivious molestation were predicated upon Petitioner touching the
victim’s vagina in a lewd or lascivious manner on separate occasions. Id. at 51-52.
Evidence was presented at trial of at least two separate occasions of lewd and lascivious

- 30 -

molestation when Petitioner touched the victim’s vagina through her pajamas. See
discussion supra Claim One.
Because each conviction was predicated on distinct acts, reasonable counsel
could have concluded that making an objection on double jeopardy grounds would have
been futile. Accordingly, counsel was not ineffective for failing to make such motion.
Petitioner has not shown that Claim Seven is “substantial” so as to excuse his procedural
default of this claim. Claim Seven is dismissed as unexhausted and procedurally barred.
Alternatively, it is denied on the merits. See 28 U.S.C. § 2254(b)(2).
Any of Petitioner's allegations not specifically addressed herein have been found
to be without merit.
IV.

Certificate of Appealability12
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 v. Cockrell, 537 U.S. 322, 335–36 (2003).

12

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.

- 31 -

Reasonable jurists could find the Court’s assessment of Claim Four debatable or
wrong.

Specifically, reasonable jurists could conclude that the trial court failed to

adequately address the third and fourth prongs of the four-pronged Waller test for
courtroom closure. Waller v. Georgia, 467 U.S. 39, 48 (1984).

Accordingly, Petitioner

will be granted a certificate of appealability as to this claim. Petitioner has not made the
requisite showing on the remaining claims, and a certificate of appealability is denied on
Claims One, Two, Three, Five, Six, and Seven.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1.

The Florida Attorney General is DISMISSED as a named Respondent.

2.

Claims One, Two, Three, Six, and Seven of the 28 U.S.C. § 2254 petition

for habeas corpus relief filed by Javier Enriquez are DISMISSED; alternatively, these
claims are DENIED. Claims Four and Five are DENIED.
3.

Petitioner is DENIED a certificate of appealability as to Claims One, Two,

Three, Five, Six, and Seven. Petitioner is GRANTED a certificate of appealability as to
Claim Four.
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 13th day of August, 2015.

SA: OrlP-4
Copies: All Parties of Record

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