Gomez v. Secretary Department of Corrections et al
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,
FLORIDA ATTORNEY GENERAL,
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.
Respondent filed a response to the petition (Doc. 16).
filed a reply (Doc. 24), and the matter is now ripe for review.
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).
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
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).
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).
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).
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 __).
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On March 3, 2014, Gomez filed a motion for post-conviction
relief pursuant to Rule 3.850 of the Florida Rules of Criminal
ineffective assistance of trial counsel (Ex. 12).
denied (Ex. 15).
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).
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:
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
resulted in a decision that was based on an
unreasonable determination of the facts in
light of the evidence presented in the State
28 U.S.C. § 2254(d).
This standard is both mandatory and difficult
White v. Woodall, 134 S. Ct. 1697, 1702 (2014).
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).
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“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,
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
State courts “must reasonably apply the rules ‘squarely
established’ by [the Supreme] Court’s holdings to the facts of
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,
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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]
unreasonably refuses to extend that principle to a new context
Williams, 529 U.S. at 406).
The petitioner must show that the
state court’s ruling was “so lacking in justification that there
was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” White, 134 S.
Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. 86 (2011)).
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.
conviction court contains flawed reasoning, the federal court must
give the last state court to adjudicate the prisoner’s claim on
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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).
explanation, qualifies as an adjudication on the merits which
(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
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
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).
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Burt v. Titlow, 134 S.
Ineffective Assistance of Counsel
In Strickland v. Washington, the Supreme Court established a
ineffective assistance. 466 U.S. 668, 687-88 (1984).
must establish that counsel’s performance was deficient and fell
deficient performance prejudiced the defense. Id.
This is a
“doubly deferential” standard of review that gives both the state
court and the petitioner’s attorney the benefit of the doubt.
Burt, 134 S. Ct. at 13 (citing Cullen v. Pinholster, 563 U.S. 170
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.
Indeed, the petitioner bears the heavy burden to
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”
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level of judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470,
477 (2000) (quoting Strickland, 466 U.S. at 690).
Petitioner’s burden to demonstrate prejudice is high. Wellington
“requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.” Strickland, 466 U.S. at 687.
That is, “[t]he defendant
must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. At 694.
A reasonable probability
outcome.” Strickland, 466 U.S. at 694.
Exhaustion and Procedural Default
circumstances, from granting habeas relief unless a petitioner has
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,
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).
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
procedural grounds under state law. Coleman, 501 U.S. at 750.
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
A petitioner can avoid the application of procedural default
by establishing objective cause for failing to properly raise the
constitutional violation. Spencer v. Sec’y, Dep’t of Corr., 609
F.3d 1170, 1179–80 (11th Cir. 2010).
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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
“constitutional violation has probably resulted in the conviction
of one who is actually innocent[.]”
478, 479-80 (1986).
Actual innocence means factual innocence, not
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).
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;
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(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
Gomez asserts that his statements to the police were made
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’
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).
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statements to the police and his confession was used at trial.
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).
post-conviction court also concluded that, because of the amount
In the instant case, the State presented live
testimony of the victim as to how the
Defendant sexually battered her.
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
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).
District Court of Appeal affirmed without a written opinion (Ex.
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
Wilson, 834 F.3d at 1235.
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A recording of Gomez’ interview with the police was played at
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.
told the police that the victim had spilled baby milk between her
Id. at 343-45.
The interviewers told Gomez that the victim
had given them a different story:
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.
you go ahead and tell us what
I can find someone to speak
It’s not going to
change anything. Do you want
me to find somebody who speaks
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understand what you’re saying.
Can you understand us?
There’s no problem with what
(T. at 347-48).
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,
Id. at 350.
He took the victim to his living room
and gave her water and something to eat.
and tried to put his penis in her vagina.
He opened her shirt
Id. at 351-52.
penetrated the victim’s vagina with his finger, and ejaculated on
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
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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
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
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
understand the statement to be a request for an attorney.”
v. United States, 512 U.S. 452, 459 (1994).
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).
victim agreed, but when she arrived at Gomez’ house, nobody was
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.
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 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.
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.
Id. at 530-
Given the amount of evidence against Gomez, independent
of his confession, the post-conviction court’s conclusion that he
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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).
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
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.”
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
See Harmon v. Barton, 894 F.2d 1268
Gomez was charged by information and tried by a six person
jury (Ex. 1).
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“manifest injustice” exception to the procedural bar.
Even if this claim were exhausted, Gomez would not be entitled
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.
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
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”).
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.”).
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In addition to being subject to dismissal as procedurally
barred, Claim Two is denied on the merits.
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
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)
Constitution—applies also to Vienna Convention claims”) (internal
Gomez has offered no cause for the default of
this claim (other than his ignorance of the claim’s existence),
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).
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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
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.
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
In addition to being unexhausted, Claim Three fails on the
Any of Gomez’ allegations not specifically addressed herein
have been found to be without merit.
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Certificate of Appealability 6
Gomez is not entitled to a certificate of appealability.
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.
appealability, he is not entitled to appeal in forma pauperis.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
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
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The Florida Attorney General is DISMISSED from this
action as a named Respondent.
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
Gomez is DENIED a certificate of appealability.
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.
Copies: Jeremias V. Gomez
Counsel of Record
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