Morera v. Secretary, Department of Corrections et al

Filing 26

OPINION AND ORDER dismissing the Florida Attorney General as a named respondent; denying 1 Petition for writ of habeas corpus and the case is dismissed with prejudice. 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 2/14/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
NEURY RIVERO MORERA,
Petitioner,
v.

Case No: 2:14-cv-416-FtM-29MRM

SECRETARY,
DEPARTMENT
OF
CORRECTIONS
and
ATTORNEY
GENERAL, STATE OF FLORIDA,
Respondents. 1
OPINION AND ORDER
This matter comes before the Court on a petition for habeas
corpus relief filed pursuant to 28 U.S.C. § 2254 by Neury Rivero
Morera(“Petitioner”), a prisoner of the Florida Department of
Corrections (Doc. 1, filed June 16, 2014).

Petitioner, proceeding

pro se, attacks the convictions and sentences entered against him
by the Twentieth Judicial Circuit Court in Collier County, Florida
for trafficking in more than twenty-five pounds of marijuana and
possession of drug paraphernalia. Id.
to the petition (Doc. 19).

1

Respondent filed a response

Despite being granted an extension of

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.

time to do so, Petitioner filed no reply, and 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.

Background and Procedural History 2

On July 27, 2007, the state charged Petitioner by amended
information with trafficking in more than twenty-five pounds of
cannabis, in violation of Florida Statute §§ 893.135(1)(a) and
777.011 and possession of drug paraphernalia, in violation of
Florida Statute § 893.147 (Ex. 1).

A jury found Petitioner guilty

as charged, and he was sentenced to fifteen years in prison (Ex.
4; Ex. 5; Ex. 24).
Prior to trial, Petitioner filed a motion to suppress in which
he urged that the search of the “grow-house” where he and the
marijuana was found was illegal because, although he (Petitioner)
consented

to

the

search

of

the

2

grow-house,

he

did

not

have

Unless otherwise indicated, citations to exhibits are to
those filed by Respondent on September 11, 2014 (Doc. 21).
Citations to the trial transcript, located in Exhibit 24, will be
cited as (T. at __).

- 2 -

authority to do so (Ex. 4).

Following a hearing (Ex. 23), the

motion to suppress was denied on the ground that Petitioner lacked
standing

to

proceed

(Ex.

4).

On

direct

appeal,

Petitioner

objected to the denial of his motion to suppress, arguing that the
trial court should not have rejected the motion without first
considering the substantive Fourth Amendment issues raised in the
motion

(Ex.

7).

Florida’s

Second

District

Court

of

Appeal

affirmed the conviction (Ex. 10).
On May 18, 2009, Petitioner filed a motion pursuant to Rule
3.850 of the Florida Rules of Criminal Procedure (“Rule 3.850
motion”) raising nine claims of ineffective assistance of counsel
(Ex.

12).

The

post-conviction

court

granted

an

evidentiary

hearing on three of the ineffective assistance claims and summarily
denied the other claims (Ex. 14).

After an evidentiary hearing

at which Petitioner and his trial counsel testified (Ex. 25),
Petitioner’s remaining claims were denied (Ex. 15).

Florida’s

Second District Court of Appeal affirmed (Ex. 20).
Petitioner filed a federal habeas petition in this Court on
June 16, 2014 (Doc. 1).
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:

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(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

as

deference.
2008).

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,
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,

- 4 -

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

- 5 -

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
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

for

determining

whether

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a

convicted

person

is

entitled

to

relief

on

the

ground

that

his

counsel

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

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
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

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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

sufficient

to

A reasonable probability

undermine

confidence

in

the

Petitioner raises ten claims in his amended petition.

He

outcome.” Strickland, 466 U.S. at 694.
III. Analysis

asserts that: (1) the trial court erred when it denied his motion
to suppress; and (2) defense counsel (“Counsel”) was ineffective
for: (a) failing to object to the admissibility of evidence seized
from Petitioner’s vehicle; (b) failing to depose the state’s
witnesses

prior

to

trial;

(c)

not

knowing

about

PH

Down

(fertilizer) evidence seized from Petitioner’s car; (d) failing to
effectively

cross

examine

state

witness

Investigator

Morgan

Rogers; (e) failing to move to exclude “common criminal conduct”
testimony by law enforcement; (f) failing to move for a judgment
of acquittal; (g) failing to request jury instructions on the
affirmative defense of lack of knowledge; (h) failing to request
a

“Defendant’s

Statements”

cautionary

instruction;

and

(i)

failing to move for a mistrial based on the prosecutor’s closing

- 8 -

arguments

(Doc.

1).

In

a

footnote,

Petitioner

additional claim of cumulative error. Id. at 24 n.1.

raises

an

Each claim

will be addressed separately.
a.

Claim One

Petitioner asserts that the trial court erred when it denied
his motion to suppress the evidence seized from the marijuana growhouse on the ground that he (Petitioner) lacked standing to object
to the police officers’ warrantless search of somebody else’s home
without first hearing evidence or ruling on the merits of the
defense motion (Doc. 1 at 6).

In his pre-trial motion to suppress

the evidence seized from the marijuana grow-house, Petitioner
explained the facts surrounding his arrest as follows:
Before [Petitioner’s] arrest, on February 26,
2007, Inv. Rogers and Vice/Narcotics received
information from an anonymous caller that the
residence at 490 14th Ave. NE was being used
as a marijuana grow house.
Inv. Rogers conducted a property records check
and discovered that the residence was owned by
a Zayli Perez . . . and on February 26, 2007
conduced surveillance of said property and
smelled marijuana coming from the garage area
and heard multiple air conditioner units
operating from the rear of the residence.
Inv. Rogers continued his surveillance on
March 1, 2007, March 6, 2007, and March 28,
2007.
The surveillance on such dates
indicated the same results as the original
search on February 26, 2007.
On March 29, 2007, Inv. Rogers and Inv.
Gaydash knocked on the front door of the
residence.
A Hispanic male, the Defendant,
later identified as Neury Rivero Morera,

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opened the door.
Inv. Rogers told the
Defendant that the Sheriff’s Office had reason
to believe that the residence was being used
as a marijuana grow house and then asked the
Defendant if he would allow the investigators
into the house; the Defendant granted them
access. The investigators further asked the
Defendant if they could check the residence to
see if anyone else was in the home.
Upon such search, they found growing marijuana
plants in two (2) rooms.
The Defendant was then placed under arrest and
Inv. Rogers applied for a search warrant which
was signed by Judge Carr.
(Ex. 4 at 1-2).
In

his

motion

to

suppress,

Petitioner

admitted

that

he

consented to the search of the grow-house, but argued that the
search was nonetheless illegal because he had no authority to
consent to the police’s entry to a house he did not own.
3.

Id. at

A hearing was held on the motion to suppress, and the trial

court determined that, from the face of the motion, it was clear
that Plaintiff did not own the grow-house, was not an overnight
guest at the grow-house, and had no possessions in the grow-house
(Ex. 23 at 5-6).

The trial court concluded that Petitioner lacked

standing to object to the warrantless search of someone else’s
house, and the motion to suppress was denied (Ex. 23).
On direct appeal, Petitioner argued that the trial court erred
by determining that Petitioner lacked standing to object to the
search without any record evidence to support that determination
(Ex. 6) (citing Andrews v. State, 536 So. 2d 1108 (Fla. 4th DCA

- 10 -

1988)).

Florida’s Second District Court of Appeal affirmed the

trial court’s denial of the motion to suppress (Ex. 10).
Petitioner’s

assertion

that

the

trial

court

erred

under

Florida law by making its ruling on the motion to suppress without
developing adequate record evidence on standing fails on habeas
review.

“In conducting habeas review, a federal court is limited

to deciding whether a conviction violated the Constitution, laws,
or treaties of the United States.” Estelle v. McGuire, 502 U.S.
62, 68 (1991); see also 28 U.S.C. § 2254(a).

Petitioner does not

explain how the state courts’ rejection of this claim violated the
United States Constitution or federal law.

To the contrary,

federal law supports the state courts’ rejection of Claim One.
In United States v. Salvucci, 448 U.S. 83 (1980), the Supreme
Court

held

that

evidence

seized

during

a

search

should

be

suppressed only if a defendant proves that his own Fourth Amendment
rights were violated during the search. Id. at 85 (overruling the
“automatic standing” rule of Jones v. United States, 362 U.S. 257
(1960), under which any person charged with a possessory offense
could challenge the search in which the incriminating evidence was
obtained, and limiting such Fourth Amendment claims to those
persons who had a reasonable expectation of privacy in the area or
object of the search).

The Salvucci Court also reaffirmed the

principle that, in order to challenge a search on Fourth Amendment
grounds, a defendant bears the burden of demonstrating that he had

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a legitimate expectation of privacy in the place searched. Id. at
95;

see

also

Rawlings

v.

Kentucky,

448

U.S.

98,

104

(1980)

(defendant has the burden of establishing that the search violated
his legitimate expectation of privacy in a particular place).
Petitioner has not shown that he had a legitimate expectation
of privacy in the grow-house.

In fact, the argument in his

suppression motion is based on the contention that he could not
have consented to the search of the grow-house because he had no
expectation of privacy therein.

Accordingly, the trial court’s

denial of his suppression motion was not contrary to Salvucci,
Rawlings, or any other clearly established federal law. 3
Because the state courts’ adjudication of this claim did not
result

“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,” Petitioner
is not entitled to federal habeas corpus relief on Claim One.
Therefore, the claim is denied under 28 U.S.C. § 2254(d)(1).

3

Even assuming that Petitioner did have an expectation of
privacy in the grow-house because he had authority over the area
(an argument not made in the instant petition), it is undisputed
that Petitioner consented to the search of the grow-house, and
such consent defeats this claim. See Schneckloth v. Bustamonte,
412 U.S. 218, 219 (1973) (“It is equally well settled that one of
the specifically established exceptions to the requirements of
both a warrant and probable cause is a search that is conducted
pursuant to consent.”); Illinois v. Rodriguez, 497 U.S. 177 (1990)
(recognizing a valid warrantless entry and search of premises when
police obtain the voluntary consent of an occupant who shares, or
is reasonably believed to share, authority over the area).

- 12 -

b.

Claim Two

Petitioner asserts that Counsel was ineffective for failing
to argue that he (Petitioner) had standing to object to the search
of

the

grow-house

because

“evidence

was

seized

from

both

Defendant’s vehicle and person during search of residence, such
would have established standing and entitled Defendant to [sic]
opportunity to present evidence and be heard on merits of illegal
search claim.” (Doc. 1 at 12).

Petitioner raised this issue in

his Rule 3.850 motion and the post-conviction court denied the
claim as follows:
Defendant alleges that counsel was ineffective
for overlooking and failing to present
determinative facts establishing his standing
to challenge the search of the house for
purposes
of
a
motion
to
suppress.
Specifically, Defendant asserts that the
motion to suppress was deficient in that it
did not address his privacy interest in his
person and his vehicle, which were included in
the search.
The State argues in its Response that
Defendant fails to set forth a valid basis
upon which counsel could have moved to
suppress the evidence.
Defendant’s person
and vehicle were searched pursuant to the
warrant, not upon consent. Defendant’s “only
claim to the warrant,” the State continues,
“is that ‘no valid consent has been obtained
for law enforcement’s initial entry into the
residence.’” The State then points out that
this claim was the very one that counsel
submitted in his motion to suppress.
The transcript of the suppression hearing
reflects that counsel did not intend to
challenge the warrant, but to challenge the
initial entry of the police. This would seem

- 13 -

to be in accord with Defendant’s current claim
that the challenge is to the initial entry and
not the warrant.
Defendant has failed to
establish how counsel was ineffective within
the meaning of Strickland.
(Ex.

14

at

3-4)

(internal

citation

to

the

record

omitted).

Florida’s Second District Court of Appeal affirmed (Ex. 20). A
review of the record and applicable law supports the state courts’
findings.
In his motion to suppress, Petitioner asserted that after he
consented to the police officers’ search of the grow-house, the
police found growing marijuana plants therein and immediately
applied for a search warrant for the house, its curtilage and
premises, and any vehicle found therein (Ex. 3 at 2).

The

testimony presented at trial demonstrated that the police briefly
searched only the grow-house before they stopped the search and
applied for a search warrant (T. at 170, 216).

The search warrant

allowed the police to search the grow-house, the premises and
curtilage, and any vehicles therein (Ex. 2).
of

Petitioner’s

car

reasonable

competent

challenging

the

was

search

pursuant

counsel
of

to

a

could

Petitioner’s

Because the search

valid
have
car

search

warrant,

decided

against

in

the

motion

to

suppress. See Brownlee v. Haley, 306 F.3d 1043, 1066 (111th Cir.
2002) (counsel is not ineffective for failing to raise issues that
“clearly lack merit.”).

Claim Two fails to satisfy Strickland’s

performance prong, and is denied pursuant to 28 U.S.C. § 2254(d).

- 14 -

c.
In

Claim

Claim Three and Claim Four

Three,

Petitioner

asserts

that

Counsel

was

ineffective for failing to adequately investigate the case and
prepare a defense (Doc. 1 at 17).

Specifically, Petitioner urges

that Counsel should have deposed the witnesses against him, and
had he done so, he would have realized that incriminating evidence
was found in Petitioner’s car.

In Claim Four, Petitioner asserts

that Counsel was ineffective for failing to learn before trial
that the police had found a bottle of pH Down, a soil treatment
used to lower the pH of soil and “essential in the cultivation of
marijuana” (T. at 203), in the trunk of Petitioner’s car. Id. at
25.

Petitioner asserts that, had he known the police found the

pH Down in his car, he may have accepted the state’s earlier plea
offer of three years in prison. Id. at 21-23, 26-28.
Petitioner raised these claims in his Rule 3.850 motion, and
the

post-conviction

court

denied

Claim

Three

as

conclusively

refuted by the record:
Defendant
alleges
that
counsel
“unconstitutionally abdicated representation
of
Defendant,
forcing
involuntary
selfrepresentation,
in
[the]
matter
of
investigation of [the] case and preparation of
[the defense].
To support this claim,
Defendant sites to the following passage in
the trial transcript:
[Defense Counsel]: Okay.
What the
Judge is trying to tell you . . . [is]
do you want me to talk with the
investigators to dig a little deeper

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in case something that they’re gonna
say is not in those papers?”
[Defendant]:
You’re
the
attorney.
You’re the one who’s gonna make that
decision.
[Defense Counsel]: Well, right now the
Judge
wants
you
to
make
that
decision[.]
[The Court]: Your attorney can’t make
that decision.
[Defense Counsel]:
you have.

It’s a right that

However, as the record reveals, this is not an
example
of
an
attorney
abdicating
his
responsibility to represent his client, but
that of the court attempting to protect
Defendant’s rights. Copies of the pertinent
pages of the transcript are attached hereto.
This passage is preceded in the transcript by
an exchange in which the trial court is
informed that no discovery had been done prior
to trial.
To the extent that Defendant claims that he
was forced in to proceeding to trial without
having deposed the witnesses, the record
reflects that Defendant was specifically
informed of this right and asked if wished to
have depositions taken. Defendant responded
that he didn’t “have a problem” with the fact
that he would not know what the witnesses were
going to say until he heard them in open court.
The Florida Supreme Court has held that “[i]f
the matter forming the basis of a motion to
vacate was known to the defendant at the time
of trial, it will not support a collateral
attack on the judgment of conviction.” State
v. Matera, 266 So. 2d 661, 666 (Fla. 1972).
Defendant knew at the time of trial that he
had the right to depose the witnesses and he
chose not to. He cannot now claim that his
decision not to depose the witnesses is a

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result
of
counsel’s
ineffective
representation. Ground 1, therefore, will be
DENIED as conclusively refuted by the law and
the record.
(Ex.

14

at

2-3)

(internal

alterations in original).

citations

to

the

record

omitted,

The post-conviction court further found

that “had [Petitioner] exercised his right to depose the witnesses
prior to trial, he would have learned [of the pH Down found in his
car] and could have better assessed the strength of his case.” Id.
at 3.

The post-conviction court denied Claim Four “for the same

reasons as outlined” in its rejection of Claim Three. Id.

The

post-conviction court’s rejections of Claims Three and Four were
affirmed by Florida’s Second District Court of Appeal (Ex. 20). A
review of the record and applicable law supports the state courts’
findings.
Prior to the beginning of trial, the state attorney informed
the trial court that Petitioner’s desire to “fast track” his case
resulted in no discovery being conducted in his case (T. at 6-7).
The trial court expressed concern over Petitioner’s desire to
proceed to trial too quickly:
COURT:

Now, why is that a concern to
me? I guess I’m gonna tell your
client, Mr. Morera this. If you
are found not guilty, we don’t
have to worry. If you’re found
guilty, Mr. Morera, every day,
almost every day and sometimes
more often than every day, I get
letters from people in state
prison telling me about all the

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complaints that things didn’t
happen that should have.
One of my common complaints is
that my lawyer did not do what
they should have done. If they
would have, I wouldn’t be found
guilty. I’m gonna give you an
example
of
what
they
say
sometimes my lawyer didn’t do.
My lawyer did not go out and
talk to all the witnesses and
get a record of what all the
witnesses had to say because
you’re allowed to do that.
Instead we went straight to
trial not knowing what they were
going to say under oath. Do you
understand that?
PETITIONER:

Yes.

COURT:

In this case your lawyer, they
tell me, no one’s taken any
depositions of which they’re
entitled to in a felony charge
like this.
Depositions are
where
they
talk
to
the
witnesses under oath way before
trial to see what they’re
really going to say or not say.
Do you understand that?

PETITIONER:

Yes.

COURT:

Did you know you had the right
to have depositions taken of
all the witnesses against you?

PETITIONER:

Yes.

COURT:

But you chose – you don’t want
the depositions taken?
You
want them just to come in and
testify in front of you for the
first time?

PETITIONER:

Sure, yes.

- 18 -

(T. at 8-9).

It is clear from the trial transcript that Petitioner

wished to exercise his speedy trial rights, and Petitioner does
not now explain how Counsel could have taken additional steps to
delay proceeding to trial in order to depose witnesses.
foregoing

discovery

in

exchange

for

considered a sound trial strategy.

a

speedy

Further,

trial

may

be

See Landry v. State, 666 So.

2d 121, 128 (Fla. 1995) (“There is no question that there are
legitimate strategic reasons why a defendant might wish to forego
discovery in exchange for a speedy trial.”).

Counsel cannot be

adjudged incompetent for performing in a particular way in a case
as long as the approach taken may be considered sound trial
strategy. Darden v. Wainwright, 477 U.S. 168 (1986).

Therefore,

Petitioner has not satisfied the prejudice prong of Strickland’s
ineffectiveness test.
Moreover, Counsel testified at the evidentiary hearing on
Petitioner’s
evidence,

Rule

3.850

including

motion

that

photographs

he

reviewed

showing

the

the
pH

state’s
Down

in

Petitioner’s car, with Petitioner prior to the trial (Ex. 25 at
37-38).

Counsel testified that his defense strategy “was to tie

[Petitioner’s] testimony as to how the pH Down may have gotten in
his vehicle because the understanding was that originally he came
[to

the

grow-house

with

four

other

people]

in

two

different

vehicles. . . [and Counsel] could have put something in the minds
of the jury saying that these people [in the other car] planted

- 19 -

[the pH Down] in [Petitioner’s] car[.]” Id. at 36.

Accordingly,

Petitioner knew of the pH Down found in the trunk of his car prior
to

trial

through

Counsel

and

the

pictures

of

the

evidence.

Petitioner could not have based his decision to reject the state’s
plea offer on the lack of pH Down evidence, and he did not suffer
prejudice from his attorney’s failure to separately learn of the
pH Down’s presence through depositions.
Claims
Strickland’s

Three

and

Four

ineffectiveness

fail

to

test,

satisfy

and

the

either

claims

prong

are

of

denied

pursuant to 28 U.S.C. § 2254(d).
d.

Claim Five

Petitioner asserts that Counsel was ineffective for failing
to

cross-examine

Collier

County

Sheriff’s

Office

Investigator

Morgan Rogers as to why the bottle of pH Down, which was shown in
photographs taken of Petitioner’s car and discussed at trial, was
not listed in his Search Warrant Return or the inventory of items
found in Petitioner’s vehicle (Doc. 1 at 29).
this

claim

in

his

Rule

3.850

motion,

and

Petitioner raised
after

holding

an

evidentiary hearing, the post-conviction court denied the claim as
follows:
Defendant asserts that trial counsel was
ineffective for failing to effectively crossexamine a law enforcement officer as to the
lack of documentation of a piece of physical
evidence found in Defendant’s
vehicle –
namely, pH Down, which is a type of chemical
used to maintain the proper pH level in the
fertilizer associated with marijuana grow

- 20 -

operations. [This claim] is in reference to
State’s Exhibit 5 introduced at trial: a
photograph
of
the
pH
Down
located
in
Defendant’s vehicle which was parked in the
driveway of the residence discovered to be a
marijuana grow house.
At
the
evidentiary
hearing,
Defendant
testified that the pH Down allegedly found in
his trunk, but not listed on any of the law
enforcement evidence inventory lists, was
Defendant’s only connection with the marijuana
grow house. Defendant further testified that
he did not have any keys to the house. At the
evidentiary hearing, Defendant’s
former
trial counsel, Mr. Gordon, testified that the
marijuana grow house was not even a façade for
a residential home but that it was only being
used to grow marijuana plants.
Mr. Gordon
testified that keys were required to gain
access to each of the bedrooms in the
residence.
Mr. Gordon testified that just
because the pH Down was not listed on the law
enforcement inventory list didn’t mean it
wasn’t found in his car. Mr. Gordon testified
that he did not ask Investigator Morgan Rogers
about the pH Down not being on the inventory
list during cross-examination because he did
not want the pH Down to be featured in front
of the jury. This Court finds trial counsel’s
recollection and testimony of the facts
regarding the claims asserted by Defendant .
. . to be far more credible than Defendant’s
recollection and testimony.
The record reflects that the pH Down found in
Defendant’s
vehicle
was
not
the
only
connection Defendant had to the marijuana grow
house. At the trial, Investigator Rogers and
Investigator Steve Gaydash testified that
Defendant’s key chain had a key to the front
door of the residence and keys to the other
rooms inside the residence where the marijuana
was being grown.
Additionally, the vehicle
discovered in the driveway of the residence by
law enforcement officers contained a vehicle
registration form which established that
Defendant was the owner of the vehicle; the

- 21 -

registration was introduced
State’s Exhibit 9.

at

trial

as

The Court finds that trial counsel’s strategy
of
not
cross-examining
law
enforcement
officers regarding the absence of pH Down on
an inventory list in order to prevent it from
being featured in the minds of the jury was a
reasonable tactical decision in light of the
additional evidence connecting Defendant with
the marijuana grow house and introduced at
trial. Furthermore, even assuming that trial
counsel was ineffective for failing to crossexamine the law enforcement officers at trial
regarding the absence of the pH Down from any
of the inventory lists, the Court finds that
Defendant has failed to demonstrate the
deficient performance prejudiced the defense
within the meaning of Strickland.
(Ex.

15

at

3-5)

(internal

citations

to

the

record

omitted).

Florida’s Second District Court of Appeal affirmed the postconviction court’s rejection of this claim (Ex. 20).

A review of

the record and applicable law supports the state courts’ findings.
At trial, Investigator Rogers testified that he discovered a
bottle of pH Down in Petitioner’s car and that “[i]t’s purchased
in hydroponics stores, and it’s really used for serious people
involved in growing of different types of plants.

But we’ve

encountered it in growing in marijuana.” (T. at 178-79).

Rogers

testified that it was “very common” to find pH Down in grow houses.
Id. at

79.

On

cross

examination,

Counsel

questioned

Rogers

extensively as to the ownership of the grow-house, but he did not
question him as to why the inventory sheet of items removed from
Petitioner’s car did not list the bottle of pH Down. Id. at 192-

- 22 -

205.

At the evidentiary hearing, Counsel explained that he did

not do so because he did not want to draw attention to Rogers’
testimony regarding the pH Down (Ex. 25 at 36).

The post-

conviction court specifically found Counsel’s testimony in this
regard to be credible (Ex. 15 at 5).

Federal court have “no

license to redetermine the credibility of witnesses whose demeanor
has been observed by the state trial court, but not by them.”
Marshall v. Lonberger, 459 U.S. 422, 434 (1983).
The record shows that Counsel made a strategic decision not
to draw attention to Rogers’ failure to list the pH Down on the
inventory sheet.

Counsel believed that cross examining Rogers on

this issue would have underscored the existence of the pH Down in
Petitioner’s car.

The jug was visible in photographs taken during

the search of Petitioner’s car, and, as noted by Counsel, “just
because it wasn’t on an inventory sheet doesn’t mean it didn’t
exist.” (Ex. 25 at 36).
reasonable

attorney

Petitioner cannot demonstrate that no

would

have

chosen

questioning of Rogers about the pH Down.

to

forego

further

See Davis v. Singletary,

119 F.3d 1471, 1477 (11th Cir. 1997) (counsel not ineffective for
failing to impeach testimony of witness who had been hypnotized
because doing so “would have run the risk of bolstering that
witness’

testimony

in

the

eyes

of

the

jury.”).

The

post-

conviction court reasonably determined that Counsel’s performance
was not deficient.

Accordingly, Claim Five fails to satisfy the

- 23 -

first prong of Strickland’s ineffectiveness test, and the claim is
dismissed under 28 U.S.C. § 2254(d).
e.

Claim Six

Petitioner asserts that Counsel was ineffective for failing
to object to impermissible “common criminal conduct” testimony
from law enforcement officers (Doc. 1 at 32).

Specifically, he

urges that Counsel should have objected to testimony that it was
common to find pH Down fertilizer in grow houses; that key-locks
on interior bedroom doors are uncommon in most residences; and
that a typical grow-house operation will have different named
individuals on each of the deed, lease, and utility bills. Id. at
32-34. Petitioner claims that the testimony of common criminal
conduct was underscored in the state attorney’s closing arguments.
Id. at 35-36.

Petitioner submits that this testimony caused the

jury to find him guilty. Id. at 37.
Petitioner raised this claim in his Rule 3.850 motion, and
the

post-conviction

court

recognized

that

testimony

of

“generalized common practices among drug dealers is not admissible
as proof of guilt.” (Ex. 14 at 4-5) (citing Lawrence v. State, 766
So. 2d 250, 251 (Fla. 4th DCA 2000)).

However, the post-conviction

court concluded that Counsel had no grounds on which to object
because the testimony was not of “generalized common practices,”
but of “what the officers found and how they recognized the house
to be a grow house.” Id.at 5.

Therefore, concluded the court,

- 24 -

counsel had no reasonable basis on which to object. Id.

Florida’s

Second District Court of Appeal affirmed (Ex. 20).
Petitioner

does

not

explain

how

the

state

courts’

adjudication of Claim Six was contrary to, or an unreasonable
application of, Strickland.

As noted by the post-conviction

court, testimony about a defendants’ general criminal behavior is
not allowed at trial as substantive proof of guilt. See Dunning v.
State, 695 So.2d 473, 474 (Fla. 4th DCA 1997) (holding that the
admission of detective’s testimony concerning general customs of
drug dealers, specifically that it was not uncommon for dealers to
keep drugs off their persons, was error).

However, the post-

conviction court determined that the objected-to testimony did not
fall within the purview of this prohibition because the testimony
at issue merely explained what the police officers found and how
they recognized the house to be a grow house (Ex. 14 at 5). Both
the post-conviction court—and by its affirmance, the appellate
court—determined
Accordingly,

that

Florida

Petitioner

law

cannot

supported

demonstrate

the

testimony.

prejudice

from

Counsel’s failure to object because the state courts have already
told us how this issue would have been resolved had Counsel raised
the arguments set forth in the instant habeas petition.
objection

would

have

been

overruled.

It

is

“a

An

‘fundamental

principle that state courts are the final arbiters of state law,
and federal habeas courts should not second-guess them on such

- 25 -

matters.’” Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1355
(11th Cir. 2005) (quoting Agan v. Vaughn, 119 F.3d 1538, 1549 (11th
Cir. 1997)).
Moreover, the statements at issue were not so prejudicial as
to “undermine confidence in the outcome” of Petitioner’s trial.
Strickland, 466 U.S. at 694.

Evidence was presented at trial that

Petitioner was found in a house filled with more than two hundred
marijuana

plants,

nineteen

thousand-watt

lightbulbs,

nineteen

transformers to power the lightbulbs, two separate air conditioner
units in the 1700 square-foot house, and an inside irrigation
system (T. at 170-8, 183).

It was noted that every room in the

house, except for the garage, was used to grow marijuana plants,
and that no room was being used as living space. Id. at 177.
Petitioner’s keyring contained keys to the front door of the house
and

to

each

locked

bedroom

of

the

house.

Id.

at

179-80.

Petitioner’s car contained a bottle of fertilizer of the type
commonly used on marijuana plants. Id.
person in the house. Id.

Petitioner was the only

Given the overwhelming evidence that

Petitioner was involved in the operation of the grow-house, he has
not met his burden of showing that the “common criminal conduct”
testimony at trial deprived him of a fair trial.

Accordingly,

Petitioner has not satisfied Strickland’s prejudice prong, and
Claim Six is denied. 28 U.S.C. § 2254(d).

- 26 -

f.

Claim Seven

Petitioner asserts that Counsel was ineffective for failing
to move for a judgment of acquittal based on his (Petitioner’s)
lack of knowledge (Doc. 1 at 38-41).

Specifically, Petitioner

claims that the state did not prove that he had knowledge of the
illicit nature of the marijuana in the grow-house. Id. at 40.
Petitioner raised this claim in his Rule 3.850 motion, and the
post-conviction court denied it on the ground that Petitioner could
not

demonstrate

Strickland

prejudice

because

“the

properly given to the jury to decide.” (Ex. 14 at 5).

case

was

The Post-

conviction court was affirmed by Florida’s Fifth District Court of
Appeal (Ex. 20).

A review of the record and applicable law

supports the state courts’ adjudication of this claim.
Under Florida law, a motion for judgment of acquittal is designed
to challenge the legal sufficiency of the state’s evidence. State v.
Williams, 742 So. 2d 509, 510 (Fla. 1st DCA 1999). In moving for
judgment of acquittal, a defendant admits not only the facts stated
in the evidence, but also every reasonable conclusion favorable to
the state that the fact finder might fairly infer from the evidence.
Williams, 742 So. 2d at 510 (citing Lynch v. State, 293 So .2d 44,
45 (Fla. 1974)). If the state presents competent evidence to establish
each element of the crime, a motion for judgment of acquittal should
be denied. Id. at 510.

In other words, a trial court may not grant

the motion for a judgment of acquittal unless the evidence, when

- 27 -

viewed in a light most favorable to the state, fails to establish a
prima facie case of guilt. Id.

The trial court instructed the jury that to be found guilty
of trafficking in marijuana, the state must prove that: (1) the
defendant

knowingly

sold,

delivered,

or

possessed

a

certain

substance; (2) the substance was marijuana; (3) the quantity of
marijuana

involved

exceeded

twenty-five

pounds;

and

(4)

the

defendant knew the substance was marijuana (T. at 275); State v.
Dominguez, 509 So. 2d 917 (Fla. 1987); Fla. Stat. § 893.135(1)(a)
(2007). 4

The testimony presented at trial was that Petitioner was

found alone in a house with eighty-four pounds of marijuana plants.
The

house

residence.

was

designed

only

to

raise

plants,

and

not

as

a

Petitioner had keys to the house and to the individual

rooms of the house on his keyring, which also contained keys to a
car registered in Petitioner’s name.

Petitioner asserts that he

was merely taken to the house by unnamed friends in an inebriated
state where he was left alone to sleep on the sofa, and that no
evidence was presented to prove that he knew the plants in the

4

Although this is the instruction read to the jury with the
approval of the state at Petitioner’s 2007 trial (T. at 275), in
2002, the Florida Legislature eliminated the fourth element as a
requirement for a conviction for trafficking in cannabis. Fla.
Stat. § 893.101 (2006); Person v. State, 950 So. 2d 1270, 1272 n.1
(Fla. 2d DCA 2007). Currently, a person charged under Chapter 893
who did not have knowledge of the illegality of his or her conduct
may raise that fact as an affirmative defense.
See State v.
Adkins, 96 So. 3d 412 (Fla. 2012).

- 28 -

house were marijuana (Doc. 1 at 40-41).

However, viewing the

evidence presented by the state in the light most favorable to the
state, the post-conviction court did not unreasonably conclude
that Petitioner would not have prevailed on a motion for judgment
of acquittal. See Jean v. State, 638 So. 2d 995, 996-97 (Fla. 4th
DCA 1994) (concluding, in appeal of prosecution for trafficking in
cocaine

resulting

cocaine,

that

in

conviction

circumstantial

for

attempted

evidence

was

possession

sufficient

to

of

show

defendant’s dominion and control over cocaine in a non-residential
duplex apartment with multiple persons present, where defendant
was found sitting on a couch, the floor of the room was strewn
with approximately 200 cocaine rocks, windows were barred and a
grated metal interior door was padlocked, and the premises were
ill-suited for casual social gatherings, so that State presented
evidence inconsistent with the theory that defendant simply was a
visitor).

Moreover, as discussed in Claim Six, supra, Petitioner

cannot demonstrate prejudice because the state courts have already
told us how this issue would have been resolved had Counsel made
the motion for judgment of acquittal.
The

state

courts’

conclusion

It would have been denied.
that

Petitioner

cannot

demonstrate prejudice from Counsel’s failure to make a motion for
judgment of acquittal was neither contrary to, nor based upon an
unreasonable application of, Strickland.
pursuant to 28 U.S.C. § 2254(d).

- 29 -

Claim Seven is denied

g.

Claim Eight

Petitioner asserts that Counsel was ineffective for failing
to request a jury instruction on the affirmative defense that he
lacked knowledge of the illicit nature of the controlled substance
in the grow-house (Doc. 1 at 42).

Petitioner raised this claim

in his Rule 3.850 motion, and the post-conviction court conducted
an evidentiary hearing (Ex. 20).

Afterwards, the post-conviction

court denied the claim on the ground that Petitioner could not
demonstrate Strickland prejudice:
Defendant asserts that trial counsel was
ineffective for failing to request, or object
to the trial court’s failure to give,
affirmative
defense
instructions.
Specifically, Defendant claims that he had the
affirmative defense of lack of knowledge and
that the State had the burden of disproving
his defense, which they failed to do. At the
evidentiary hearing, Defendant testified that
trial counsel did not discuss defenses or
affirmative defenses with him prior to trial.
Defendant testified that his trial testimony
included a lack of knowledge that the
marijuana was in the house and that he did not
know how it smelled or what it looked like.
At
the
evidentiary
hearing,
[Counsel]
testified that the defense’s trial strategy
was that Defendant was at the wrong place at
the wrong time, not Defendant’s lack of
knowledge.
[Counsel] testified that he
discussed the defense strategy with Defendant.
[Counsel]
testified
that
Defendant’s
testimony changed at trial from their previous
discussions, and that this change in testimony
was a surprise to him at the trial. [Counsel]
testified that Defendant’s trial testimony
that he lacked any knowledge of the marijuana
or its illicit nature was an implausible
defense based on the evidence introduced at

- 30 -

trial.
[Counsel] testified that the jury
returned a verdict against Defendant in two
minutes.
This Court finds trial counsel’s recollection
and testimony of the facts regarding the
claims asserted by Defendant . . . to be far
more credible than Defendant’s recollection
and testimony.
However, even assuming that
trial counsel was ineffective for failing to
request, or object to the trial court’s
failure
to
give,
affirmative
defense
instructions, the Court finds that Defendant
has failed to demonstrate the deficient
performance prejudiced the defense within the
meaning of Strickland.
(Ex. 15 at 5-6).

Florida’s Second District Court of Appeal

affirmed (Ex. 20).

A review of the record and applicable law

supports the state courts’ adjudication of this claim.
At

the

Petitioner

evidentiary
developed

a

hearing,
trial

Counsel

strategy

explained

based

upon

that

he

and

Petitioner’s

statement that he had come to the house with friends from Miami and
was only going to be in the house for a few hours (Ex. 25 at 31).
Counsel believed that Petitioner’s best chance for an acquittal was
“saying that he (Petitioner) was in the wrong place at the wrong
time.” Id.

When asked whether he planned to present the affirmative

defense at trial of lack of knowledge that the plants in the house
were marijuana, Counsel answered:

COUNSEL:

No.

STATE:

Why is that?

A.

Again, I – I didn’t think it was
plausible and I had told him, Mr.
Morera, this from day one that I
don’t believe that – considering

- 31 -

what
was
in
that
house,
the
condition of the house, that a jury
would believe that that would be a
plausible defense.
Q.

You had mentioned an overwhelming
smell. Can you describe a bit what
you
mean
to
the
extent
of
overwhelming smell coming from the
house?

A.

Well, I believe there were two
hundred plants if – if I’m correct.
There were a lot of generators, a
lot of lights, again, fertilizer.
If you’re in a smaller house with
not much to absorb odor, I mean,
odor is floating around the house as
marijuana smell. I don’t know how
you wouldn’t notice it.

Q.

Is that a distinctive smell?

A.

In my opinion, yes.

Q.

Based on your strategy at trial and
he defendant’s testimony that was
elicited at trial, did you find a
reasonable basis to request an
affirmative
defense
instruction
with regard to these charges?

A.

No.

(Ex. 25 at 33-34).

Based on Counsel’s testimony, found to be credible

by the post-conviction court, his decision to forego the affirmative
defense of lack of knowledge was based upon sound trial strategy.
Given the overwhelming evidence that Petitioner knew he was in a
marijuana grow-house, reasonable counsel could have chosen to pursue
a

“wrong

attempting
Likewise,

place at
to

the

make

given

the

an

wrong

time”

incredible
evidence

defense
lack

against

- 32 -

of

strategy
knowledge

Petitioner,

instead

of

argument.
he

cannot

demonstrate

prejudice

from

Counsel’s

affirmative defense instruction.

failure

to

request

an

Finally, the jury was instructed,

albeit erroneously, that in order to find Petitioner guilty, it must
determine that he knew of the illicit nature of the marijuana plants
in the house (T. at 275).
Accordingly,

An additional instruction was unnecessary.

Petitioner

has

satisfied

neither

prong

of

Strickland’s ineffectiveness test, and Claim Eight is denied. 28
U.S.C. § 2254(d).
h.

Claim Nine

Petitioner asserts that Counsel was ineffective for failing to
request a “Defendant’s Statements” cautionary jury instruction (Doc.
1 at 46).

Specifically, he contends that his statements to law

enforcement

officers

regarding

consent

to

enter

the

grow-house,

admission of ownership of the keys, and statements about his presence
in the residence were sufficient to request the cautionary jury
instruction. Id.

Petitioner raised this claim in his Rule 3.850

motion, and it was denied by the post-conviction court on the ground
that Petitioner had satisfied neither prong of Strickland (Ex. 15 at
6).

The post-conviction court noted that during his testimony at

trial, Petitioner generally denied making the statements that he now
contends required a jury instruction and that “a request by trial
counsel

for

the

court

to

give

cautionary

jury

instructions

on

statements made by Defendant to law enforcement officers or an
objection by trial counsel to the trial court’s failure to give such
cautionary jury instructions, would have confounded the jury and

- 33 -

discredited Defendant’s own trial testimony.” Id. at 7.
Second District Court of Appeal affirmed (Ex. 20).

Florida’s

A review of the

record supports the state courts’ adjudication of this claim.
At trial, Investigator Rogers testified that Petitioner allowed
the police into the grow-house and that he was read his Miranda5
rights as soon as the police entered (T. at 188).

He testified that

he spoke with Petitioner only “briefly . . . just to get his name.”
Id. at 199. He said that Petitioner did not want to speak with him
and he had very little conversation with him. Id. at 199, 205.

He

testified that Petitioner told him that the vehicle keys on the
keyrign belonged to him. Id. at 204.

Investigator Gaydash testified

that Petitioner told him that he was from Tampa, that he knew nobody
in the neighborhood, and that he just found the door to the house
open and came in to lay down. Id. at 217, 225.

Gaydash also testified

that Petitioner admitted that the keys on his keyring belonged to
him, but told him he didn’t know why he had the keys to the house.
Id. at 230.

At trial, Petitioner testified that he generally denied

living in the house to the police and that he did not give the police
permission to enter. Id. at 241.

He denied speaking with Investigator

5

Miranda v. Arizona, 384 U.S. 436 (1966) (holding that a
defendant’s statements made in response to interrogation while in
custody will be admissible at trial only if the prosecution can
show that the defendant was informed of the right to consult with
an attorney before and during questioning and of the right against
self-incrimination before police questioning, and that the
defendant not only understood these rights, but voluntarily waived
them).

- 34 -

Gaydash at all. Id. at 242.

He testified that he told the police

that only the car keys on the keyring belonged to him. Id. at 243.
Given Petitioner’s limited statements to the police, and given
that Petitioner denied speaking to Investigator Gaydash at all,
reasonable competent counsel could have determined that asking for
standard jury instruction 3.9(b) 6 would have merely confused the jury
and focused attention on the statements Petitioner allegedly made to

6

Standard

Instruction

3.9(b),

“Defendant’s

Statements”

reads:
A statement claimed to have been made by the
defendant outside of court has been placed
before you. Such a statement should always be
considered with caution and be weighed with
great care to make certain it was freely and
voluntarily made.
Therefore, you must determine from the
evidence
that
the
defendant’s
alleged
statement was knowingly, voluntarily, and
freely made.
In making this determination, you should
consider the total circumstances, including
but not limited to
1.

whether, when the defendant made the
statement, [he] [she] had been threatened
in order to get [him] [her] to make it,
and

2.

whether anyone had promised [him] [her]
anything in order to get [him] [her] to
make it.

If you conclude the defendant’s out of court
statement was not freely and voluntarily made,
you should disregard it.
Fla. Std. J.I. 3.9(b).

- 35 -

the police.
has

not

Moreover, given the evidence of Petitioner’s guilt, he

demonstrated

that,

but

for

the

omission

of

the

jury

instruction, the result of his trial would have differed. Strickland,
468 U.S. at 694.

Accordingly, Petitioner has satisfied neither prong

of the Strickland ineffectiveness test, and Claim Nine is denied. 28
U.S.C. § 2254(d).
i.

Claim Ten

Petitioner asserts that Counsel was ineffective for failing
to object and move for a mistrial in response to the State’s
closing argument (Doc. 1 at 52-56).

Petitioner lists four pages

of statements that he believes were improper. Id.

Petitioner

raised this claim in his Rule 3.850 motion, and the post-conviction
court denied the claim as follows:
The Florida Supreme Court has held that the
“proper exercise of closing argument is to
review the evidence and to explicate those
inferences which may reasonable be drawn from
the evidence.” Bertolotti v. State, 476 So. 2d
130, 134 (Fla. 1985). After careful review,
it appears to this Court that the statements
were conclusions “reasonably drawn” from the
evidence.
Thus, there would have been no
valid bases upon which counsel could have
objected or moved for mistrial.
(Ex. 14 at 6).

The post-conviction court’s rejection of this

claim was affirmed by Florida’s Second District Court of Appeal
(Ex.

20).

After

reviewing

Petitioner’s

list

of

allegedly

objectionable comments, this Court concludes that the post-conviction
court’s rejection of Claim Ten was not an unreasonable application

- 36 -

of Strickland nor was it based on an unreasonable determination of
the facts in light of the evidence presented in the state court.
Under Florida law, wide latitude is afforded to counsel during
closing arguments. See Breedlove v. State, 413 So.2d 1, 8 (Fla. 1982).
Counsel’s

role

in

closing

argument

is

to

“assist

the

jury

in

analyzing, evaluating and applying the evidence.” United States v.
Pearson, 746 F.2d 787, 796 (11th Cir. 1984).

While a prosecutor may

not go beyond the evidence before the jury, he is not limited to a
bare recitation of the facts. He may comment on the evidence, and
“state his contention as to the conclusions that the jury should draw
from the evidence.” United States v. Johns, 734 F.2d 657, 663 (11th
Cir. 1984).
Here,

Petitioner

takes

issue

with

numerous

prosecutor

statements, which he characterizes as “misstating proper standards
on burden of proof”; “improper vouching for guilt of defendant and
veracity

of

evidence”;

State’s
“improper

case”;

“improper

suggestion

argument

defense

of

obligated

facts
to

not

in

disprove

evidence or prove innocence”; and “improper ‘what you as the juror
couldn’t

but

know’

arguments”

(Doc.

1

at

52-56).

However,

the

statements listed by Petitioner are instances of the prosecutor merely
drawing inferences from the evidence presented and suggesting the
conclusions that may be drawn by the jury.

The Court has reviewed

each of these statements in the context of the entire closing argument
(T. at 256-63, 269-74) and concludes that the prosecutor’s closing
argument was within the parameters set forth in Florida and federal

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law, and Counsel was not ineffective for failing to object to these
statements. The prosecutor did not make any comment that could be
seen as placing the state’s credibility or prestige behind a witness,
nor did the prosecutor suggest that there was additional, undisclosed
evidence that was indicative of Petitioner’s guilt.

That Petitioner

does not like the way the state characterized or interpreted the
evidence does not make the statements improper.

Because the comments

were not improper, reasonable competent defense counsel could have
chosen not to object to the closing argument.
Even

assuming

arguendo

deficient

performance

by

Counsel,

Petitioner has not shown resulting prejudice. The record reflects
that the trial judge instructed the jury that it must reach its
verdict solely from the evidence set forth from witness testimony and
exhibits (T at 287, 288); Brown v. Jones, 255 F.3d 1273, 1280 (11th
Cir. 2001) (citations omitted) (“jurors are presumed to follow the
court’s instructions”).

The attorneys were not witnesses in the

case, and their statements and arguments were not evidence. See
Hammond v. Hall, 586 F.3d 1289, 1334 (11th Cir. 2009).

Petitioner

has not shown that a reasonable probability exists that the outcome
of the case would have differed if his lawyer had objected to each
of the prosecutor’s allegedly improper statements.
Claim Ten fails to satisfy either prong of Strickland, and is
denied pursuant to 28 U.S.C. § 2254(d).

- 38 -

j.

Cumulative Error

Petitioner asserts that Counsel’s multiple errors resulted in
prejudice (Doc. 1 at 24 n.1).

This Court need not determine

whether, under current Supreme Court precedent, cumulative error
claims

can

ever

succeed

in

showing

that

the

state

court’s

adjudication on the merits was contrary to or an unreasonable
application of clearly established federal law.

Nor must the

Court determine whether this claim has been exhausted. 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.”).
Petitioner has not shown an error of constitutional dimension with
respect to any federal habeas claim.

Therefore, he cannot show

that the cumulative effect of the alleged errors deprived him of
fundamental fairness in the state criminal proceedings. See Morris
v.

Sec’y,

Dep’t

of

Corr.,

677

F.3d

1117,

1132

(11th

Cir.

2012)(refusing to decide whether post-AEDPA claims of cumulative
error may ever succeed in showing that the state court’s decision
on the merits was contrary to or an unreasonable application of
clearly established law, but holding that petitioner’s claim of
cumulative error was without merit because none of his individual
claims of error or prejudice had any merit); Forrest v. Fla. Dep’t
of Corr., 342 F. App’x 560, 565 (11th Cir. 2009)(noting absence of
Supreme Court precedent applying cumulative error doctrine to

- 39 -

claims of ineffective assistance of counsel, but holding that the
petitioner’s cumulative error argument lacked merit because he did
not establish prejudice or the collective effect of counsel’s error
on the trial); Hill v. Sec’y, Fla. Dep’t of Corr., 578 F. App’x
805 (11th Cir. 2014)(same).

Petitioner is not entitled to federal

habeas relief.
Any of Petitioner’s allegations not specifically addressed
herein have been found to be without merit.
IV.

Certificate of Appealability 7

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

7

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.

- 40 -

(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:
1.

The Florida Attorney General is DISMISSED as a named

Respondent.
2.

The 28 U.S.C. § 2254 petition for habeas corpus relief

filed by Neury Rivero Morera (Doc. 1) is DENIED, and this case is
dismissed with prejudice.
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 February, 2017.

SA: OrlP-4
Copies: Neury Rivero Morera
Counsel of Record

- 41 -

14th

day