Gomez v. Secretary Department of Corrections et al

Filing 21

OPINION AND ORDER dismissing the Florida Attorney General as a named respondent; denying Claim One of 13 Amended petition for writ of habeas corpus on the merits; dismissing Claims Two and Three as unexhausted, or alternatively denying on the merits. The case is dismissed with prejudice and Gomez is denied a certificate of appealability. The Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 8/11/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JEREMIAS V. GOMEZ,
Petitioner,
v.

Case No:

2:16-cv-17-FtM-29CM

FLORIDA ATTORNEY GENERAL,
Respondent. 1
OPINION AND ORDER
This matter comes before the Court on an amended petition for
habeas corpus relief filed pursuant to 28 U.S.C. § 2254 by Jeremias
V. Gomez (“Petitioner” or “Gomez”), a prisoner of the Florida
Department of Corrections (Doc. 13, filed February 16, 2016).
Gomez, proceeding pro se, attacks the convictions and sentences
entered against him by the Twentieth Judicial Circuit Court in
Collier County, Florida for two counts of capital sexual battery.
Id.

Respondent filed a response to the petition (Doc. 16).

Gomez

filed a reply (Doc. 24), and the matter is now ripe for review.

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.

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

On March 10, 2009, the State of Florida charged Gomez by
information with two counts of sexual battery on a child less than
twelve years old, in violation of Florida Statute § 794.011(2)
(Ex. 1). 2

After a three-day trial (Ex. 2), the jury convicted him

as charged (Ex. 3).

Gomez was sentenced to life in prison without

the possibility of parole on each count (Ex. 4).

Florida’s Second

District Court of Appeal affirmed the convictions and sentences
without a written opinion (Ex. 7); Gomez v. State, 104 So. 3d 1095
(Fla. 2d DCA 2012).
On November 21, 2013, Gomez filed a state petition for writ
of habeas corpus, alleging ineffective assistance of appellate
counsel (Ex. 10).

The petition was dismissed (Ex. 11); Gomez v.

State, 149 So. 3d 12 (Fla. 2d DCA 2014).

2

Unless otherwise indicated, citations to exhibits and
appendices are to those filed by Respondent on August 1, 2016 (Doc.
17). The trial transcript, located in Exhibit Two, will be cited
as (T. at __).

- 2 -

On March 3, 2014, Gomez filed a motion for post-conviction
relief pursuant to Rule 3.850 of the Florida Rules of Criminal
Procedure

(“Rule

3.850

motion”),

raising

a

single

ineffective assistance of trial counsel (Ex. 12).
denied (Ex. 15).

claim

of

The motion was

The denial was affirmed by Florida’s Second

District Court of Appeal (Ex. 16); Gomez v. State, 182 So. 3d 647
(Fla. 2d DCA 2015).
II.
a.

Legal Standards

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

granted with respect to a claim adjudicated on the merits in state
court unless the adjudication of the claim:
(1)

resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States; or

(2)

resulted in a decision that was based on an
unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.

28 U.S.C. § 2254(d).
to meet.

This standard is both mandatory and difficult

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

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).

- 3 -

“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,
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,

- 4 -

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,

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.
Notably,

even

when

the

opinion

of

a

lower

state

post-

conviction court contains flawed reasoning, the federal court must
give the last state court to adjudicate the prisoner’s claim on

- 5 -

the merits “the benefit of the doubt.” Wilson v. Warden, Ga.
Diagnostic Prison, 834 F.3d 1227, 1235 (11th Cir. 2016), cert
granted Wilson v. Sellers, 137 S. Ct. 1203 (Feb. 27, 2017).
state

court’s

summary

rejection

of

a

claim,

even

A

without

explanation, qualifies as an adjudication on the merits which
warrants deference.
(11th Cir. 2008).

Ferguson v. Culliver, 527 F.3d 1144, 1146
Therefore, to determine which theories could

have supported the state appellate court’s decision, the federal
habeas court may look to a state post-conviction court’s previous
opinion as one example of a reasonable application of law or
determination of fact; however, the federal court is not limited
to assessing the reasoning of the lower court. Wilson, 834 F.3d at
1239.
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);
Ct. 10, 15-16 (2013) (same).

- 6 -

Burt v. Titlow, 134 S.

b.

Ineffective Assistance of Counsel

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

test

entitled

to

for

relief

determining
on

the

whether

ground

that

a

convicted
his

person

counsel

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

is

rendered

A petitioner

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

an

objective

standard

of

reasonableness

and

deficient performance prejudiced the defense. Id.

that

the

This is a

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

In reviewing counsel’s performance, a court

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

by

Indeed, the petitioner bears the heavy burden to
a

preponderance

of

the

evidence,

that

counsel’s

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

A court must “judge the reasonableness of

counsel’s conduct on the facts of the particular case, viewed as
of the time of counsel’s conduct,” applying a “highly deferential”

- 7 -

level of judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470,
477 (2000) (quoting Strickland, 466 U.S. at 690).
As

to

the

prejudice

prong

of

the

Strickland

standard,

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

Moore,

314

F.3d

1256,

1260

(11th

Cir.

2002).

Prejudice

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

That is, “[t]he defendant

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

“a

probability

sufficient

to

A reasonable probability

undermine

confidence

in

the

outcome.” Strickland, 466 U.S. at 694.
c.
The

AEDPA

Exhaustion and Procedural Default
precludes

federal

courts,

absent

exceptional

circumstances, from granting habeas relief unless a petitioner has
exhausted

all

means

of

available

relief

under

state

law.

Exhaustion of state remedies requires that the state prisoner
“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

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the claim or a similar state law claim.

Snowden v. Singletary,

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

addition,

a

federal

habeas

court

is

precluded

from

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

claims

that

have

been

denied

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

in

state

court

and

actual

prejudice

from

the

alleged

constitutional violation. Spencer v. Sec’y, Dep’t of Corr., 609
F.3d 1170, 1179–80 (11th Cir. 2010).

- 9 -

To show cause, a petitioner

“must demonstrate that some objective factor external to the
defense impeded the effort to raise the claim properly in state
court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999);
Murray v. Carrier, 477 U.S. 478 (1986).

To show prejudice, a

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

only

occurs

in

an

extraordinary

case,

where

a

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

Actual innocence means factual innocence, not

legal insufficiency.
(1998).

Murray v. Carrier, 477 U.S.

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

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

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

“To be credible, a claim of actual innocence

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
Gomez raises three claims in his 28 U.S.C. § 2254 petition:
(1) trial counsel (“Counsel”) was constitutionally ineffective for
failing to seek suppression of Gomez’ confession to the police;

- 10 -

(2) Gomez was denied his rights under the Fifth and Fourteenth
Amendments to the United States Constitution because he was not
indicted by a grand jury or provided a twelve-person jury for his
trial; and (3) Gomez was denied his legal rights as a Mexican
citizen under the Vienna Convention.

Each claim will be addressed

separately.
a.

Claim One

Gomez asserts that his statements to the police were made
without

a

proper

interviewing

law

Miranda

3

warning

enforcement

and

were

officers

coerced

(Doc.

13

by
at

the
7).

Specifically, he argues that his Miranda warning was inadequate
because it was not made in Spanish and that his question to the
police as to whether there was “anybody that speak Spanish” was a
clear and unambiguous request for counsel.

He claims that he

explained to Counsel that he did not understand his rights during
his interview with the police and that he “asked [Counsel] to get
rid of the statements, because he believed he was tricked by [the
police] into making statements that could be bad against him.”
Id. at 8.

Counsel never filed a motion to suppress Gomez’

3

Miranda v. Arizona, 384 U.S. 436 (1966) (a custodial
defendant’s statements made in response to interrogation are
admissible at trial only if 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).

- 11 -

statements to the police and his confession was used at trial.
Id.
Gomez raised this claim in his Rule 3.850 motion (Ex. 12).
The post-conviction court, applying Strickland, determined that
Counsel could not have made a good-faith motion to suppress his
confession because Gomez spoke fluent English (Ex. 15 at 3).

The

post-conviction court also concluded that, because of the amount
of

other

evidence

against

him,

Gomez

could

not

demonstrate

Strickland prejudice:
In the instant case, the State presented live
testimony of the victim as to how the
Defendant sexually battered her.
The jury
also heard the victim, through the child
hearsay video testify as to the Defendant’s
actions on the very day of the event. Dr. Wu
testified as to the physical injuries to the
victim’s vagina and hymen and the pernicious
force necessary to cause such injuries.
Furthermore, the Defendant’s DNA was found in
the swabs from the victim’s vagina and genital
area and from her underwear. Therefore, the
Court
finds
that
the
Defendant
cannot
demonstrate prejudice from trial counsel’s
failure to file a motion to suppress his
statements in light of the substantial eye
witness and physical evidence against him.
Id. at 4 (citations to the record omitted).

Florida’s Second

District Court of Appeal affirmed without a written opinion (Ex.
16).

The affirmance of the post-conviction court’s ruling is

entitled to deference, and the Court must now determine whether
any arguments or theories could have supported the state appellate
court’s conclusions.

Wilson, 834 F.3d at 1235.

- 12 -

A recording of Gomez’ interview with the police was played at
his trial.

During the interview, Gomez was given his Miranda

warnings in English, and Gomez affirmed that he understood them
(T. at 335).

Initially, Gomez told the police that the victim was

never in his house and that he had dropped the victim and her
mother at their house after he drove them to a doctor’s appointment
Id. at 337-39.

When the interviewers asked why the victim told a

different story, Gomez admitted that the victim had come back to
his house with him to babysit his grandchild.

Id. at 342.

He

told the police that the victim had spilled baby milk between her
legs.

Id. at 343-45.

The interviewers told Gomez that the victim

had given them a different story:
INTERVIEWER1.

There’s no sense in not telling
us the truth right now, okay?
We know what happened, as I
told you earlier. We need to
hear it from you. We want to
hear why it happened. Okay?
There is probably a mistake or
a misunderstanding, something
that, you know, went the wrong
way. And you’re probably very
sorry for what happened.
Is
that true?
Okay.
Why don’t
you go ahead and tell us what
happened.

GOMEZ.

Is there
Spanish?

INTERVIEWER1.

I can find someone to speak
Spanish.
It’s not going to
change anything. Do you want
me to find somebody who speaks
Spanish?

- 13 -

anybody

that

speak

GOMEZ.

My
English.
understand---

INTERVIEWER1.

Yeah.
Very
good.
We
understand what you’re saying.

INTERVIEWER2.

Can you understand us?

GOMEZ.

Yeah.

INTERVIEWER2.

There’s no problem with what
I’m saying?

GOMEZ.

No.

(T. at 347-48).

Can

you

Thereafter, Gomez admitted that he took the victim

to his house on the pretext of babysitting a child.

He then took

her to the bedroom of his house, but when he tried to touch her,
she screamed.

Id. at 350.

He took the victim to his living room

and gave her water and something to eat.

Id.

and tried to put his penis in her vagina.

He opened her shirt
Id. at 351-52.

He

penetrated the victim’s vagina with his finger, and ejaculated on
her.

Id. at 351-54, 63.

Gomez admitted covering the victim’s

mouth with his hand to stop her from crying.

Id. at 359-60.

Upon review of the entire interview transcript, the Court
concludes that reasonable counsel could have determined that Gomez
spoke sufficient English to understand his Miranda warnings. In
addition to telling the police that he understood the Miranda
rights (T. at 335), Gomez’ responses to the interviewers’ questions
were appropriate, and he did not show difficulty in explaining, in
English, what had happened during his encounter with the victim.
At no point did either interviewer appear to have difficulty

- 14 -

understanding

Gomez’

English.

This

point

is

undergirded

by

Counsel’s affirmation to the trial court that Gomez “spoke fluent
English” (T. at 4).

Reasonable competent counsel could have

concluded that the available evidence indicated that Gomez was
read, and understood, his Miranda rights.
Equally unavailing is Gomez’ argument that he requested an
attorney after the interview began by asking if anybody there spoke
Spanish.

Even after receiving Miranda warnings, once a defendant

expresses a desire to have counsel present, he is not subject to
further interrogation by law enforcement until counsel is made
available.

Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).

However, the Supreme Court has recognized that a defendant “must
articulate his desire to have counsel present sufficiently clearly
that

a

reasonable

police

officer

in

the

circumstances

would

understand the statement to be a request for an attorney.”

Davis

v. United States, 512 U.S. 452, 459 (1994).

Reasonable competent

counsel could have concluded that Gomez’ question as to whether
anyone spoke Spanish was not an unambiguous request for counsel—
particularly given that Gomez was clearly able to communicate
sufficiently in English to make such a request.
In addition, as noted by the post-conviction court, the state
presented sufficient evidence for Gomez’ conviction, even if the
confession had been suppressed.

The victim, who was ten years old

at the time of the sexual battery, testified at trial that Gomez

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had asked her to help take care of his grandchild because his
daughter (the grandchild’s mother) was sick (T. at 144).

The

victim agreed, but when she arrived at Gomez’ house, nobody was
there.

Id.

Gomez took the victim into his bedroom and attempted

to kiss her and to remove her shorts, but she pushed him away.
Id. at 147-48.
some water.

The victim screamed and told Gomez that she wanted

Id. at 149.

and tried to hug her.

Gomez took her to the living room sofa,

She pushed him away, but Gomez climbed on

top of the victim, and put his hands and penis in her shorts.
tried to scream, but Gomez covered her mouth.

She

She eventually felt

something warm and wet come out of Gomez’ penis between her legs.
Afterwards, Gomez took her home, and told her not to tell her
mother what had happened.
who called the police.

However, the victim told her mother,

Id. at 144-58.

The jury also heard the

victim’s video-taped interview with the Child Advocacy Center,
made on the day of the sexual battery.

Id.

at 418-54.

The

victim’s recorded statement mirrored her testimony at trial.
Pediatrician Dr. Michael Wu testified that he examined the
victim soon after the attack and found a bruised vagina and a tear
on the victim’s hymen membrane (T. at 226-28).
swabs of the victim’s vaginal area.

Dr. Wu also took

Gomez’ DNA was present on the

vaginal and genital swabs collected from the victim.
35, 37.

Id. at 530-

Given the amount of evidence against Gomez, independent

of his confession, the post-conviction court’s conclusion that he

- 16 -

could not demonstrate prejudice was neither contrary to Strickland
nor based upon an unreasonable determination of the facts.
Claim One fails on both Strickland prongs and is denied
pursuant to 28 U.S.C. § 2254(d).
b.
Gomez

asserts

that

he

Claim Two
had

a

constitutional

right

to

be

indicted by a grand jury and to be tried by a twelve-person jury
(Doc. 13 at 11). 4

Gomez admits that this claim was not raised in

state court, but urges that he could not have done so because the
ground was “just 1-11-16 found out by law clerk to be a value to
petitioner[.]”

Id. at 31.

Respondent urges that Gomez’ failure to raise Claim Two in
state court renders it unexhausted and procedurally barred (Doc.
16 at 8-10).

The Court agrees.

Although Gomez urges that he

could not have raised this claim earlier because he did not know
about it, this is not an “objective factor external to the defense”
that prevented him from raising Claim Two and “which cannot be
fairly attributable to his own conduct.”
488.

See Murray, 477 U.S. at

Rather, the factual and legal bases for this claim were

plainly available to Gomez at the time of his direct appeal or
post-conviction motions.

See Harmon v. Barton, 894 F.2d 1268

(11th

has

Cir.

1990).

Nor

Gomez

4

presented

new,

previously

Gomez was charged by information and tried by a six person
jury (Ex. 1).

- 17 -

unavailable,

evidence

to

support

the

applicability

of

the

“manifest injustice” exception to the procedural bar.
Even if this claim were exhausted, Gomez would not be entitled
to

federal

habeas

relief.

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.”).

It is well

settled that the Fifth Amendment’s requirement that a grand jury
initiate a prosecution is not applicable to the states.

Branzburg

v. Hayes, 408 U.S. 665, 688 n. 25 (1972)( “indictment by grand
jury is not part of the due process of law guaranteed to state
criminal defendants by the Fourteenth Amendment”) (citing Hurtado
v.

California,

110

U.S.

516

(1884)).

Moreover,

the

Sixth

Amendment’s guarantee to a jury trial does not require twelve
jurors, even in capital cases.

Williams v. Florida, 399 U.S. 78,

99 (1970) (“[T]he 12-man [jury] requirement cannot be regarded as
an indispensable component of the Sixth Amendment”).

To the

extent Gomez urges that he was entitled to a twelve person jury
under Florida law, the writ of habeas corpus was not enacted to
enforce state-created rights.

See Cabberiza v. Moore, 217 F.3d

1329, 1333 (11th Cir. 2000) (“[W]hether or not petitioner waived
his right to a twelve-person jury is a matter of Florida law, not
federal constitutional law.”).

- 18 -

In addition to being subject to dismissal as procedurally
barred, Claim Two is denied on the merits.
c.

Claim Three

Gomez asserts that he was denied his legal rights under the
Vienna Convention, Art. 36, because he did not have consular
assistance from Mexico during his criminal proceedings (Doc. 13 at
28). 5

Again, this claim is unexhausted and procedurally barred

because Gomez did not raise it in state court.

To explain his

failure to exhaust this claim, Gomez urges that he did not know of
its existence until January 11, 2016.

Id. at 31.

In Breard v. Greene, 523 U.S. 371 (1998), the Supreme Court
unambiguously held that a habeas petitioner’s Vienna Convention
claim is procedurally barred in federal court because it is not
first raised in the underlying state-court proceedings. Id. at
375; see also Sanchez-Llamas v. Oregon, 548 U.S. 331, 356 (2006)
(upholding

Breard,

default—which

and

applies

finding
even

that

to

“the

claimed

rule

of

procedural

violations

of

our

Constitution—applies also to Vienna Convention claims”) (internal
citation omitted).

Gomez has offered no cause for the default of

this claim (other than his ignorance of the claim’s existence),

5

Article 36 of the Vienna Convention provides that upon
arrest, a foreign national has the right to contact the consular
post of his home country, and that the arresting authorities must
inform the detainee of that rights.
See Vienna Convention on
Consular Relations, Art. 36(1)(b).

- 19 -

nor has he presented new, previously unavailable, evidence to
support the applicability of the “manifest injustice” exception to
the procedural bar.

Therefore, the claim must be dismissed as

unexhausted.
Claim Three also fails on the merits. 28 U.S.C. § 2254(b)(2).
Even if the Vienna Convention confers an individual right to
consular assistance following arrest, and “even were [such claims]
properly raised and proved, it is extremely doubtful that the
violation should result in the overturning of a final judgment of
conviction without some showing that the violation had an effect
on the trial.”

Darby v. Hawk-Sawyer, 405 F.3d 942, 946 (11th Cir.

2005) (quoting Breard, 523 U.S. at 371)).

Gomez makes no showing

(or allegation) that the arresting officers’ failure to contact
the Mexican Consulate affected his trial.

As noted above, supra,

the evidence against Gomez was overwhelming, and his contact with
a consulate would not have changed the evidence.

Because Gomez

does not allege or show how the arresting officers’ failure to
comply with the Vienna Convention affected his trial, he is not
entitled to habeas relief on Claim Three. See Darby, 405 F.3d at
946.

In addition to being unexhausted, Claim Three fails on the

merits.
Any of Gomez’ allegations not specifically addressed herein
have been found to be without merit.

- 20 -

Certificate of Appealability 6

IV.

Gomez is not entitled to a certificate of appealability.
prisoner

seeking

a

writ

of

habeas

corpus

has

no

A

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, Gomez must demonstrate that “reasonable jurists would
find the district court’s assessment of the constitutional claims
debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004)
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that
“the issues presented were ‘adequate to deserve encouragement to
proceed further.’” Miller–El, 537 U.S. at 335–36. Gomez has not
made the requisite showing in these circumstances.
Because

Gomez

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:

6

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 Gomez is not entitled to habeas corpus relief, it
must now consider whether Gomez is entitled to a certificate of
appealability.

- 21 -

1.

The Florida Attorney General is DISMISSED from this

action as a named Respondent.
2.

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

habeas corpus relief filed by Jeremias V. Gomez (Doc. 13) is denied
on the merits.

Claims Two and Three are dismissed as unexhausted

or, alternatively, denied on the merits.

This case is dismissed

with prejudice.
3.

Gomez 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 August, 2017.

SA: OrlP-4
Copies: Jeremias V. Gomez
Counsel of Record

- 22 -

11th

day