Anderson v. State Of Florida et al

Filing 15

ORDER denying the Petition and dismissing the action with prejudice, with directions to the Clerk. Signed by Judge Marcia Morales Howard on 4/13/2015. (BL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

RODERICK DAMONE ANDERSON,
Petitioner,
v.

Case No. 3:12-cv-642-J-34JRK

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
ORDER
I. Status
Petitioner Roderick Damone Anderson, an inmate of the Florida
penal system, initiated this action on June 4, 2012, by filing a
pro se Petition for Writ of Habeas Corpus (Petition; Doc. 1) under
28 U.S.C. § 2254 and Memorandum of Law (Doc. 3). In the Petition,
Anderson challenges a 2009 state court (Clay County, Florida)
judgment
submitted

of

conviction

for

sexual

battery.

a

memorandum

in

opposition

to

Respondents

the

Petition.

have
See

Respondents' Answer in Response to Order to Show Cause (Response;
Doc. 12) with exhibits (Resp. Ex.). On June 11, 2012, the Court
entered an Order to Show Cause and Notice to Petitioner (Doc. 7),

admonishing Anderson regarding his obligations and giving Anderson
a time frame in which to submit a reply. Anderson submitted a brief
in reply. See Petitioner's Response to Respondents' Answer to Show
Cause (Reply; Doc. 13). This case is ripe for review.
II. Procedural History
On December 19, 2007, the State of Florida charged Anderson
with sexual battery. Resp. Ex. C, Information. Anderson proceeded
to trial in April 2009, see Resp. Ex. D, Transcript of the Jury
Trial (Tr.), at the conclusion of which, on April 17, 2009, a jury
found him guilty of sexual battery, as charged. See Resp. Ex. C at
87, Verdict; Tr. at 536-37. On May 5, 2009, the court sentenced
Anderson to a term of life imprisonment. Resp. Ex. C at 107-12,
Judgment.
On appeal, Anderson, with the benefit of counsel, filed an
initial brief, arguing that the trial court erred when it denied:
his motion to suppress evidence (ground one), and his motion to
exclude the testimony of A.C., the child victim (ground two). Resp.
Ex. H. The State filed an answer brief, see Resp. Ex. I, and
Anderson filed a reply brief, see Resp. Ex. J. On July 29, 2010,
the appellate court affirmed Anderson's conviction and sentence per
curiam without issuing a written opinion, see Anderson v. State, 41
So.3d 891 (Fla. 1st DCA 2010); Resp. Ex. K, and the mandate issued
on August 16, 2010, see Resp. Ex. L. Anderson did not seek review
in the United States Supreme Court.

2

On January 13, 2011, Anderson filed a pro se motion for post
conviction relief pursuant to Florida Rule of Criminal Procedure
3.850. Resp. Ex. N at 1-50. In his request for post conviction
relief, Anderson asserted that he was deprived of a fair trial
because: he was convicted based on the child victim's inconsistent
testimony (ground one); Detective Dangerfield's probable cause
affidavit included a false statement (grounds two and three); and
newly-discovered evidence shows that Ms. Ahtarsha Denegal tampered
with the DNA evidence (ground four). As ground five, he argued that
counsel

was

ineffective

because

he

failed

to:

challenge

the

detective's affidavit in the arrest and booking report (subclaim
one); object or challenge the sufficiency of the evidence (subclaim
two); provide Anderson with various depositions during the pendency
of the case (subclaim three); impeach the testimony of the child
victim (subclaims four and six); object to the State's leading
questions (subclaim five); and object to the admission of the child
victim's videotaped interview (subclaim seven). The circuit court
denied Anderson's motion on September 13, 2011. Id. at 83-200. On
January 19, 2012, the appellate court affirmed the trial court's
denial per curiam, see Anderson v. State, 80 So.3d 1023 (Fla. 1st
DCA 2012); Resp. Ex. O, and later denied Anderson's motion for
rehearing on February 23, 2012, see Resp. Exs. P; Q. The mandate
issued on March 12, 2012. See Resp. Ex. M.

3

III. One-Year Limitations Period
The Petition appears to be timely filed within the one-year
limitations period. See 28 U.S.C. § 2244(d).
IV. Evidentiary Hearing
"In deciding whether to grant an evidentiary hearing, a
federal court must consider whether such a hearing could enable an
applicant to prove the petition's factual allegations, which, if
true, would entitle the applicant to federal habeas relief."
Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted).
"It follows that if the record refutes the applicant's factual
allegations or otherwise precludes habeas relief, a district court
is not required to hold an evidentiary hearing." Id. The pertinent
facts of this case are fully developed in the record before the
Court. Because this Court can "adequately assess [Petitioner's]
claim[s] without further factual development," Turner v. Crosby,
339 F.3d 1247, 1275 (11th Cir. 2003), an evidentiary hearing will
not be conducted.
V. Standard of Review
The Court will analyze Anderson's claims under 28 U.S.C. §
2254(d), as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). Section 2254(d) states:
An application for a writ of habeas
corpus on behalf of a person in custody
pursuant to the judgment of a State court
shall not be granted with respect to any claim
that was adjudicated on the merits in State

4

court proceedings 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.
Thus,

28

U.S.C.

§

2254(d)

"bars

religation

of

any

claim

'adjudicated on the merits' in state court, subject only to the
exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 131
S.Ct. 770, 784 (2011). As the United States Supreme Court stated,
"AEDPA erects a formidable barrier to federal habeas relief for
prisoners whose claims have been adjudicated in state court." Burt
v. Titlow, 134 S.Ct. 10, 16 (2013). This standard of review is
described as follows:
Under AEDPA, when the state court has
adjudicated the petitioner's claim on the
merits, a federal court may not grant habeas
relief unless the state court's decision was
"contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court of the
United States," 28 U.S.C. § 2254(d)(1), or
"was based on an unreasonable determination of
the facts in light of the evidence presented
in the State court proceeding," id. §
2254(d)(2). "Under § 2254(d)(1)'s 'contrary
to' clause, we grant relief only 'if the state
court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question
of law or if the state court decides a case
5

differently than [the Supreme Court] has on a
set of materially indistinguishable facts.'"
Jones v. GDCP Warden, 753 F.3d 1171, 1182
(11th Cir. 2014) (quoting Williams v. Taylor,
529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d
389
(2000)).
"Under
§
2254(d)(1)'s
'unreasonable application' clause, we grant
relief only 'if the state court identifies the
correct governing legal principle from [the
Supreme] Court's decisions but unreasonably
applies that principle to the facts of the
prisoner's case.'" Id. (quoting Williams, 529
U.S. at 413, 120 S.Ct. 1495).
For § 2254(d), clearly established
federal law includes only the holdings of the
Supreme Court – not Supreme Court dicta, nor
the opinions of this Court. White v. Woodall,U.S. -, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698
(2014). To clear the § 2254(d) hurdle, "a
state prisoner must show that the state
court's ruling on the claim being presented in
federal court was so lacking in justification
that there was an error well understood and
comprehended in existing law beyond any
possibility for fairminded disagreement."
Harrington v. Richter, 562 U.S. 86, 131 S.Ct.
770, 786-87, 178 L.Ed.2d 624 (2011). "[A]n
'unreasonable application of' [Supreme Court]
holdings must be 'objectively unreasonable,'
not merely wrong; even 'clear error' will not
suffice." Woodall, 134 S.Ct. at 1702 (quoting
Lockyer v. Andrade, 538 U.S. 63, 75-76, 123
S.Ct. 1166, 155 L.Ed.2d 144 (2003)). A state
court need not cite or even be aware of
Supreme Court cases "so long as neither the
reasoning nor the result of the state-court
decision contradicts them." Early v. Packer,
537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263
(2002); accord Richter, 131 S.Ct. at 784.
"AEDPA thus imposes a highly deferential
standard for evaluating state-court rulings
and demands that state-court decisions be
given the benefit of the doubt." Renico v.
Lett, 559 U.S. 766, 773, 130 S.Ct. 1855, 176
L.Ed.2d 678 (2010) (citations and internal
quotation marks omitted). And when a claim
6

implicates both AEDPA and Strickland, our
review is doubly deferential. Richter, 131
S.Ct. at 788 ("The standards created by
Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem,
review is doubly so." (citations and internal
quotation marks omitted)). [A petitioner] must
establish that no fairminded jurist would have
reached the Florida court's conclusion. See
Richter, 131 S.Ct. at 786-87; Holsey v.
Warden, Ga. Diagnostic Prison, 694 F.3d 1230,
1257-58 (11th Cir. 2012). "If this standard is
difficult to meet, that is because it was
meant to be." Richter, 131 S.Ct. at 786....
Taylor v. Sec'y, Fla. Dep't of Corr., 760 F.3d 1284, 1293-94 (11th
Cir. 2014); see also Hittson v. GDCP Warden, 759 F.3d 1210, 1230
(11th Cir. 2014).
Finally, for a state court's resolution of a claim to be an
adjudication on the merits, so that the state court's determination
will be entitled to deference for purposes of federal habeas corpus
review under AEDPA, all that is required is a rejection of the
claim on the merits, not an opinion that explains the state court's
rationale for such a ruling. Hittson, 759 F.3d at 1232 ("[T]here is
no AEDPA requirement that a state court explain its reasons for
rejecting a claim[.]"); Richter, 131 S.Ct. at 785 (holding that §
2254(d) does not require a state court to give reasons before its
decision can be deemed to have been adjudicated on the merits);
Wright v. Sec'y for the Dep't of Corr., 278 F.3d 1245, 1255 (11th
Cir. 2002). Thus, to the extent that Anderson's claims were
adjudicated on the merits in the state courts, they must be
evaluated under § 2254(d).
7

VI. Exhaustion/Procedural Default
There are prerequisites to a federal habeas review. Before
bringing a § 2254 habeas action in federal court, a petitioner must
exhaust all state court remedies that are available for challenging
his state conviction. See 28 U.S.C. § 2254(b), (c). To exhaust
state remedies, the petitioner must "fairly present[]" every issue
raised in his federal petition to the state's highest court, either
on direct appeal or on collateral review. Castille v. Peoples, 489
U.S. 346, 351 (1989) (emphasis omitted). Thus, to properly exhaust
a claim, "state prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking one
complete

round

of

the

State's

established

appellate

review

process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
In addressing exhaustion, the United States Supreme Court
explained:
Before seeking a federal writ of habeas
corpus,
a
state
prisoner
must
exhaust
available
state
remedies,
28
U.S.C.
§
2254(b)(1), thereby giving the State the
"'"opportunity to pass upon and correct"
alleged violations of its prisoners' federal
rights.'" Duncan v. Henry, 513 U.S. 364, 365,
115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per
curiam) (quoting Picard v. Connor, 404 U.S.
270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971))
To provide the State with the necessary
"opportunity," the prisoner must "fairly
present" his claim in each appropriate state
court (including a state supreme court with
powers of discretionary review), thereby
alerting that court to the federal nature of
the claim.
Duncan, supra, at 365-366, 115
S.Ct. 887; O'Sullivan v. Boerckel, 526 U.S.
8

838, 845,
(1999).

119

S.Ct.

1728,

144

L.Ed.2d

1

Baldwin v. Reese, 541 U.S. 27, 29 (2004).
A state prisoner's failure to properly exhaust available state
remedies results in a procedural default which raises a potential
bar to federal habeas review. The United States Supreme Court has
explained the doctrine of procedural default as follows:
Federal habeas courts reviewing the
constitutionality of a state prisoner's
conviction and sentence are guided by rules
designed to ensure that state-court judgments
are
accorded
the
finality
and
respect
necessary to preserve the integrity of legal
proceedings within our system of federalism.
These rules include the doctrine of procedural
default, under which a federal court will not
review the merits of claims, including
constitutional claims, that a state court
declined to hear because the prisoner failed
to abide by a state procedural rule. See,
e.g., Coleman,[1] supra, at 747–748, 111 S.Ct.
2546; Sykes,[2] supra, at 84–85, 97 S.Ct. 2497.
A state court's invocation of a procedural
rule to deny a prisoner's claims precludes
federal review of the claims if, among other
requisites, the state procedural rule is a
nonfederal ground adequate to support the
judgment and the rule is firmly established
and consistently followed. See, e.g., Walker
v. Martin, 562 U.S. --, --, 131 S.Ct. 1120,
1127–1128, 179 L.Ed.2d 62 (2011); Beard v.
Kindler, 558 U.S. --, --, 130 S.Ct. 612,
617–618, 175 L.Ed.2d 417 (2009). The doctrine
barring procedurally defaulted claims from
being heard is not without exceptions. A
prisoner may obtain federal review of a
defaulted claim by showing cause for the

1

Coleman v. Thompson, 501 U.S. 722 (1991).

2

Wainwright v. Sykes, 433 U.S. 72 (1977).
9

default and prejudice from a violation of
federal law. See Coleman, 501 U.S., at 750,
111 S.Ct. 2546.
Martinez v. Ryan, 132 S.Ct. 1309, 1316 (2012). Thus, procedural
defaults

may

be

excused

under

certain

circumstances.

Notwithstanding that a claim has been procedurally defaulted, a
federal court may still consider the claim if a state habeas
petitioner can show either (1) cause for and actual prejudice from
the default; or (2) a fundamental miscarriage of justice. Maples v.
Thomas, 132 S.Ct. 912, 922 (2012) (citations omitted); In Re Davis,
565 F.3d 810, 821 (11th Cir. 2009) (citation omitted).
In

the

petitioner

absence
may

of

receive

a

showing

of

consideration

cause
on

and
the

prejudice,
merits

of

a
a

procedurally defaulted claim if he can establish that a fundamental
miscarriage of justice, the continued incarceration of one who is
actually innocent, otherwise would result. The Eleventh Circuit has
explained:
[I]f a petitioner cannot show cause and
prejudice, there remains yet another avenue
for him to receive consideration on the merits
of his procedurally defaulted claim. "[I]n an
extraordinary case, where a constitutional
violation has probably resulted in the
conviction of one who is actually innocent, a
federal habeas court may grant the writ even
in the absence of a showing of cause for the
procedural default." Carrier, 477 U.S. at 496,
106 S.Ct. at 2649.[3] "This exception is
exceedingly narrow in scope," however, and
requires proof of actual innocence, not just

3

Murray v. Carrier, 477 U.S. 478 (1986).
10

legal innocence. Johnson v. Alabama, 256 F.3d
1156, 1171 (11th Cir. 2001).
Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010). "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." Johnson v. Alabama, 256 F.3d 1156, 1171 (11th
Cir. 2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
Additionally, "'[t]o be credible,' a claim of actual innocence must
be based on reliable evidence not presented at trial." Calderson v.
Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at
324). With the rarity of such evidence, in most cases, allegations
of actual innocence are ultimately summarily rejected. Schlup, 513
U.S. at 324.
VII. Ineffective Assistance of Counsel
"The Sixth Amendment guarantees criminal defendants effective
assistance
counsel's

of

counsel.

performance

That

right

is

denied

when

falls

below

an

objective

a

defense

standard

of

reasonableness and thereby prejudices the defense." Yarborough v.
Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing Wiggins v. Smith,
539 U.S. 510, 521 (2003), and Strickland v. Washington, 466 U.S.
668, 687 (1984)).
To establish deficient performance, a
person challenging a conviction must show that
"counsel's representation fell below an
objective
standard
of
reasonableness."
[Strickland,] 466 U.S. at 688, 104 S.Ct. 2052.
A court considering a claim of ineffective
assistance must apply a "strong presumption"
11

that counsel's representation was within the
"wide range" of reasonable professional
assistance. Id., at 689, 104 S.Ct. 2052. The
challenger's burden is to show "that counsel
made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." Id., at
687, 104 S.Ct. 2052.
With respect to prejudice, a challenger
must demonstrate "a reasonable probability
that, but for counsel's unprofessional errors,
the result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine confidence
in the outcome." Id., at 694, 104 S.Ct. 2052.
It is not enough "to show that the errors had
some conceivable effect on the outcome of the
proceeding." Id., at 693, 104 S.Ct. 2052.
Counsel's errors must be "so serious as to
deprive the defendant of a fair trial, a trial
whose result is reliable." Id., at 687, 104
S.Ct. 2052.
Richter, 131 S.Ct. at 787-88. Since both prongs of the two-part
Strickland

test must be satisfied to show a Sixth Amendment

violation, "a court need not address the performance prong if the
petitioner cannot meet the prejudice prong, and vice-versa." Ward
v. Hall, 592 F.3d 1144, 1163 (11th Cir. 2010)(citation omitted).
A state court's adjudication of an ineffectiveness claim is
accorded great deference.
"[T]he
standard
for
judging
counsel's
representation is a most deferential one."
Richter, - U.S. at -, 131 S.Ct. at 788. But
"[e]stablishing
that
a
state
court's
application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The
standards created by Strickland and § 2254(d)
are both highly deferential, and when the two
apply in tandem, review is doubly so." Id.
(citations and quotation marks omitted). "The
12

question is not whether a federal court
believes the state court's determination under
the Strickland standard was incorrect but
whether that determination was unreasonable a substantially higher threshold." Knowles v.
Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411,
1420, 173 L.Ed.2d 251 (2009) (quotation marks
omitted). If there is "any reasonable argument
that
counsel
satisfied
Strickland's
deferential standard," then a federal court
may not disturb a state-court decision denying
the claim. Richter, - U.S. at -, 131 S.Ct. at
788.
Hittson, 759 F.3d at 1248; Knowles v. Mirzayance, 556 U.S. 111, 123
(2009); see also Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th
Cir. 2004) ("In addition to the deference to counsel's performance
mandated

by

Strickland,

the

AEDPA

adds

another

layer

of

deference--this one to a state court's decision--when we are
considering whether to grant federal habeas relief from a state
court's decision."). "Surmounting Strickland's high bar is never an
easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
VIII. Findings of Fact and Conclusions of Law
A. Ground One
As

ground

one,

Anderson

asserts

that

Detective

Melissa

Dangerfield, in the probable cause section of the arrest and
booking report, falsely stated that Anderson said he placed his
mouth on the child victim's vagina. See Petition at 5. Respondents
contend that the claim is procedurally barred since Anderson failed
to raise the issue on direct appeal. See Response at 4-10. On this
record, the Court agrees that the claim has not been exhausted and

13

is therefore procedurally barred since Anderson failed to raise the
claim in a procedurally correct manner. Anderson has not shown
either cause excusing the default or actual prejudice resulting
from

the

warranting

bar.
the

Moreover,

he

application

has
of

failed

the

to

identify

fundamental

any

fact

miscarriage

of

justice exception.
Anderson argues that he raised the claim in his Rule 3.850
motion in state court. See Reply at 2. In this regard, the trial
court noted that "to the extent [Anderson] claims a lack of
probable cause to substantiate his arrest, this is a claim that
could or should have been raised on direct appeal." Resp. Ex. N at
84 (citations omitted). Additionally, the trial court denied the
Rule 3.850 motion relating to the issue of probable cause, stating:
In addition, probable cause for arrest exists
if an officer, based on his or her knowledge,
training,
and
experience,
analyzes
the
totality of the circumstances and concludes
that there are reasonable grounds to believe
that a felony has occurred. Blanco v. State,
452 So.2d 520, 523 (Fla. 1984); City of
Jacksonville v. Alexander, 487 So.2d 1146
(Fla. 1st DCA 1986); Krawczuk v. State, 634
So.2d 1070, 1073 (Fla. 1994); Kearse v. State,
662 So.2d 677, 684 (Fla. 1995). Furthermore,
Defendant appears to take issue with how the
detective interpreted Defendant's statements
in response to questions pertaining to the
allegation of sexual abuse on a minor child.
Having
reviewed
the
transcript
of
the
interview,
the
Court
finds
Defendant's
statements could be interpreted as detailed in
the arrest and booking report. (Exhibit "D,"
pages 27-64.) Furthermore, the affidavit was
supported by the minor victim's statements,
another child's corroborating statements, and
14

Defendant's DNA evidence found on the minor
victim's underwear. (Exhibit "C," pages 63101, 195-290.) Accordingly, the affidavit was
sufficiently supported by a fair probability
that
Defendant
engaged
in
the
alleged
misconduct and his second and third grounds
for relief are denied.
Id. at 84-85. On Anderson's appeal, the appellate court affirmed
the trial court's denial per curiam, see Anderson, 80 So.3d 1023;
Resp. Ex. O, and later denied Anderson's motion for rehearing, see
Resp. Exs. P; Q.
Assuming the appellate court affirmed the denial on the
merits, there are qualifying state court decisions. Thus, the Court
considers this claim in accordance with the deferential standard
for federal court review of state court adjudications. After a
thorough review of the record and the applicable law, the Court
concludes that the state courts' adjudications of this claim were
not contrary to clearly established federal law, did not involve an
unreasonable application of clearly established federal law, and
were not based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceedings.
Thus, Anderson is not entitled to relief on the basis of this
claim.
Moreover, even assuming the state courts' adjudications of
this

claim

are

not

entitled

to

deference,

Anderson's

claim,

nevertheless, is without merit as it does not warrant federal

15

habeas relief. The probable cause section of the arrest and booking
report, dated November 28, 2007, states:
On the 8th day of May 2007 at 7:00 pm, the
Defendant at 312 E. Haven Ave.[,] Green Cove
Springs within Clay County, violated the law
and did then and there place his mouth on the
vagina of the victim, a 5 year old female
child. This incident occurred at the home of
[the] defendant. This incident was witnessed
by an 11 year old female who completed a
statement and was forensically interviewed.
The victim gave credible disclosure during a
forensic interview with the Child Protection
Team.[4] Additionally, DNA collected from the
victim's underwear matched the DNA collected
from the defendant as reported by [the]
biology section of the Florida Department of
Law Enforcement.[5] The Defendant made several
admissions post Miranda[6] including that the
incident only happened one time and that he
did not force the victim to do anything.[7] The
defendant denied placing his penis on or in
the
victim
and
denied
any
digital
8
penetration.[ ] The defendant was arrested and

4

See Resp. Ex. F at 7-33, Transcript of the videotaped
interview of A.C. (the child victim) with the Child Protection Team
(A.C.'s Interview Tr.).
5

See Resp. Ex. E at 1, November 28, 2007 email relating to
the preliminary DNA results ("A sample from the underwear
demonstrated a mixture of DNA. The DNA profile resolved from the
mixture matched the DNA profile from Roderick Anderson[.]"); 2,
August 29, 2007 email relating to the DNA status ("The underwear
did test positive for amylase, which is a component of saliva. I'll
be assigning it for DNA testing in the next week.").
6

Miranda v. Arizona, 384 U.S. 436 (1966).
7

See Resp. Ex. F at 43, 45, 50, 54, Transcript of the
November 28, 2007 videotaped interview of Anderson (Anderson's
Interview Tr.); see also Resp. Ex. E at 3-26, November 28, 2007
interview of Anderson.
8

See Anderson's Interview Tr. at 57.
16

transported to the Clay County Jail without
incident.
Resp. Ex. C at 3-4, Office of the Sheriff, Clay County, Florida,
Arrest

Report

(selected

capitalization

omitted).

Contrary

to

Anderson's assertion, Dangerfield's November 28, 2007 probable
cause affidavit was a reasonably accurate account of Anderson's
responses and affirmations to the questions she had posed to him in
the interview. Upon being told about the DNA evidence, Anderson
made

a

series

of

potentially

incriminating

admissions

and

affirmations. See Anderson's Interview Tr. at 49, 52 ("I can't face
my family."); 50 ("Nothing was forced."); 52 ("I don't want to face
them."); 55 (affirming that it was a moment of weakness), 56
(affirming that he moved the victim's panties to the side with his
hands), 57-58 (permitting Detective Dangerfield to narrow the time
frame of the incident), 68 (stating he is "very remorseful"). At
the close of the interview, the following colloquy transpired.
[DETECTIVE DANGERFIELD:] But[,] again you're
backing away from me again and you're not
telling me what happened. I know it was a one
time thing. I know you feel bad about it. But
the only admission that you've made [to] me is
those two things. You said my DNA. I need to
be very clear. You said, no, I did not put my
penis or finger in her vagina. You said, no I
did not put my finger in her vagina.
THE DEFENDANT: You would have gotten that
information off of her statement anyway.
DETECTIVE DANGERFIELD: But she says that
you put your tongue – you licked her
pocketbook. That['s] what she called it. You

17

licked her vagina. Did you in fact lick her
vagina?
THE DEFENDANT: You got the DNA evidence.
Id. at 69-70.
At

trial,

Anderson

confirmed

that

the

videotape

of

his

interview was a complete and accurate reflection of his statements
to Detective Dangerfield. See Tr. at 412. Moreover, at trial,
Dangerfield testified that the videotape accurately captured the
November 28th interview; she confirmed that she had the DNA results
that day. Id. at 167-69. Dangerfield's November 28th probable cause
affidavit was based on the preliminary DNA results and interviews
with the child victim, an eyewitness, and Anderson. On this record,
there were reasonable grounds for Dangerfield to believe that
Anderson had committed a sexual battery upon the child victim.
Accordingly, Anderson is not entitled to habeas relief as to ground
one.
B. Ground Two
As ground two, Anderson asserts that his right to due process
of law was violated when the State Attorney's Office charged him
with sexual battery based on Detective Dangerfield's "falsely
written" probable cause affidavit. Petition at 7. In his Reply,
Anderson clarifies the claim, which he argues is based on Giglio v.
United States, 405 U.S. 150 (1972).
In my second claim, my references are
directed to the Indictment or charging
information. My argument is the Indictment is
18

based upon the misrepresented Affidavit and
the officer's false declaration before the
Court, that I made a statement I did not make,
and that the indictment is based upon this. If
it be found to be true, then it would clearly
be a due process violation. . . . 405 U.S. 150
Giglio v. U.S. (1972)[9] may or may not be the
proper route. I cannot find any case law other
than fraud on the court issues that deal with
false claims fostered by police.
Reply at 2 (selected capitalization omitted). Respondents contend
that the claim is procedurally barred since Anderson failed to
raise the issue on direct appeal. See Response at 11, 12. On this
record, the Court agrees that the claim has not been exhausted and
is therefore procedurally barred since Anderson failed to raise the
claim in a procedurally correct manner. Anderson has not shown
either cause excusing the default or actual prejudice resulting
from

the

warranting

bar.
the

Moreover,

he

application

has
of

failed

the

to

identify

fundamental

any

fact

miscarriage

of

justice exception.
Anderson states that he raised the claim in his Rule 3.850
motion in state court. See Petition at 9. As previously stated with

9

To obtain federal habeas relief on a Giglio claim, a
petitioner must prove that "(1) the prosecutor knowingly used
perjured testimony or failed to correct what he subsequently
learned was false testimony, and (2) such use was material, i.e.,
that there is any reasonable likelihood that the false testimony
could have affected the judgment." Trepal v. Sec'y, Fla. Dep't of
Corr., 684 F.3d 1088, 1107-08 (11th Cir. 2012) (internal quotation
marks and citation omitted), cert. denied, 133 S.Ct. 1598 (2013).
Anderson has established neither that the prosecutor knowingly used
perjured testimony nor that any such use could have affected the
judgment. See Response at 12-13.
19

respect to ground one, the trial court denied the Rule 3.850 motion
relating to this issue. On Anderson's appeal, the appellate court
affirmed the trial court's denial per curiam, and later denied
Anderson's motion for rehearing. Given the record in the instant
action, the appellate court may have affirmed the denial of
Anderson's motion for post conviction relief on the merits. If the
appellate

court

addressed

the

merits,

Anderson

would

not

be

entitled to relief because the state courts' adjudications of this
claim are entitled to deference under AEDPA. After a review of the
record and the applicable law, the Court concludes that the state
courts' adjudications of this claim were not contrary to clearly
established

federal

law

and

did

not

involve

an

unreasonable

application of clearly established federal law. Nor were the state
court adjudications based on an unreasonable determination of the
facts in light of the evidence presented in the state court
proceedings. Thus, Anderson is not entitled to relief on the basis
of

this

claim.

adjudications

of

Moreover,
this

even

claim

are

assuming
not

the

entitled

state
to

courts'

deference,

Anderson's claim, is still without merit for the reasons stated
with respect to ground one. See Section VIII. A. Ground One;
Response at 10-13. Anderson is not entitled to federal habeas
relief on ground two.

20

C. Ground Three
As ground three, Anderson asserts that the child victim
recanted. He explains:
In this case[,] the alleged victim recanted
the details given in [the] hearsay video
admitted
as
evidence.
This
recantation
occurred during trial. The fact of the matter
is this, that the details of the hearsay video
are true in that the alleged victim was
previously assaulted by a man who works for
her father and not myself. These details are
confirmed and explained in the deposition of
the alleged victim's mother, and the incident
not reported to police.
Petition at 10. Respondents contend that the claim is procedurally
barred since Anderson failed to raise the issue on direct appeal.
See Response at 13-14. Upon review of the record, the Court agrees
that the claim has not been exhausted and is therefore procedurally
barred since Anderson failed to raise the claim in a procedurally
correct manner. Anderson has not shown either cause excusing the
default or actual prejudice resulting from the bar. Moreover, he
has failed to identify any fact warranting the application of the
fundamental miscarriage of justice exception.
Even assuming that the claim is not procedurally barred and
presents a sufficiently exhausted issue of federal constitutional
dimension, Anderson's claim is without merit because the jury heard
any inconsistencies relating to the child victim's videotaped
interview and her trial testimony. The State presented ample
evidence to support Anderson's conviction for sexual battery. The

21

Due Process Clause of the Fourteenth Amendment requires the State
to prove each element of the offense charged beyond a reasonable
doubt. Thompson v. Nagle, 118 F.3d 1442, 1448 (11th Cir. 1997)
(citing

Jackson

v.

Virginia,

443

U.S.

307,

314

(1979)).

In

reviewing the sufficiency of evidence, "this court must presume
that conflicting inferences to be drawn from the evidence were
resolved by the jury in favor of the State." Thompson, 118 F.3d at
1448 (citing Machin v. Wainwright, 758 F.2d 1431, 1435 (11th Cir.
1985)). Jackson v. Virginia "provides the federal due process
benchmark for evidentiary sufficiency in criminal cases." Williams
v. Sec'y for Dep't of Corr., 395 F. App'x 524, 525 (11th Cir. 2010)
(per curiam) (citing Green v. Nelson, 595 F.3d 1245, 1252-53 (11th
Cir. 2010)). In accordance with this authority, the relevant
question is whether any rational jury, after viewing the evidence
in the light most favorable to the prosecution, could have found
the essential elements of the charged offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 319.
After viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found that
Anderson committed the sexual battery upon the child victim.
Competent evidence of the elements of the offense was introduced at
trial, and no due process violation occurred. At trial, Anderson
testified that he was tickling A.C. and "just moved [A.C.'s
underwear] down and uncovered her stomach and [he] blew on her

22

stomach" twice for approximately ten seconds, Tr. at 404; he denied
placing his mouth on A.C.'s vagina, see id. at 408. Nevertheless,
the jury was entitled to believe the State witnesses, including the
child victim and eyewitness's10 accounts of what happened on the day
in

question.

interview,

see

Additionally,
Tr.

at

the

133,11

jury
and

saw

heard

A.C.'s
A.C.'s

videotaped
purportedly

contradictory trial testimony, see id. at 102-26. Thus, viewing the
evidence in the light most favorable to the prosecution, there was
sufficient evidence to support the conviction for sexual battery.
Therefore, Anderson is not entitled to habeas relief as to ground
three.
D. Ground Four
As ground four, Anderson asserts that Ahtarsha Denegal (the
child

victim's

mother)

tampered

with

evidence

(the

victim's

panties). Respondents contend that the claim is procedurally barred
since Anderson failed to raise the issue on direct appeal. See
Response at 14. The Court agrees that the claim has not been
exhausted, and is therefore procedurally barred since Anderson
failed to raise the claim in a procedurally correct manner.
Anderson has not shown either cause excusing the default or actual

10

See Tr. at 63-102; at 67, 71, 72, 99-100 (A.M.'s testimony
that she saw Anderson with his head under A.C.'s skirt; A.M.
(A.C.'s Godsister) was present in the house on the day of the
incident.
11

See A.C.'s Interview Tr.
23

prejudice resulting from the bar. Moreover, he has failed to
identify any fact warranting the application of the fundamental
miscarriage of justice exception.
Even assuming that the claim is not procedurally barred and
presents a sufficiently exhausted issue of federal constitutional
dimension, Anderson's claim is still without merit. The jury heard
and weighed the facts surrounding the collection of the child
victim's clothing and reached a verdict of guilty. See Response at
15; Tr. at 180-87, 190 (Ahtarsha Denegal's testimony); 166-67, 29799 (Detective Dangerfield's testimony). Therefore, Anderson is not
entitled to habeas relief as to ground four.
E. Ground Five
As ground five, Anderson asserts that counsel (James R. Thies,
Sr.) was ineffective because he failed to: (a) challenge Detective
Dangerfield's probable cause affidavit in the arrest and booking
report; (b) object to the evidence that Ahtarsha Denegal collected
and tampered with before handing it to the police; (c) provide
requested discovery to Anderson; (d) impeach the child victim at
trial; and (e) object to A.C.'s videotaped interview that was
altered to exclude her statements relating to the man who works for
her father and the other people present when the incident occurred.
Anderson raised the first ineffectiveness subclaim in his Rule
3.850 motion. Identifying the two-prong Strickland ineffectiveness

24

test as the controlling law, the court denied the post conviction
motion with respect to this claim, stating in pertinent part:
Defendant alleges counsel was ineffective for
failing to challenge the detective's affidavit
in the arrest and booking report. As a result,
Defendant asserts his rights under the Fourth
Amendment were violated. "Where defense
counsel's failure to litigate a Fourth
Amendment claim competently is the principal
allegation of ineffectiveness, the defendant
must prove that his Fourth Amendment claim is
meritorious." Zakrzewski v. State, 866 So.2d
688, 693-95 (Fla. 2003) (quoting Kimmelman v.
Morrison, 477 U.S. 365, 375 (1986); see Gettel
v. State, 449 So.2d 413 (Fla. 1984). As
discussed with regard to grounds two and
three,12 a review of the record shows that
there was sufficient probable cause to arrest
Defendant. Accordingly, Defendant's first subclaim is denied.
Resp. Ex. N at 85. On Anderson's appeal, the appellate court
affirmed the trial court's denial per curiam, and later denied
Anderson's motion for rehearing.
Given the record in the instant action, the appellate court
may

have

affirmed

the

denial

of

Anderson's

motion

for

post

conviction relief as to this subclaim on the merits. If the
appellate court addressed the claim on the merits, Anderson would
not be entitled to relief because the state courts' adjudications
of this claim are entitled to deference under AEDPA. After a review
of the record and the applicable law, the Court concludes that the

12

In grounds two and three of Anderson's Rule 3.850 motion,
he asserted that the detective's affidavit included a false
statement and did not accurately reflect his responses to questions
posed during the interview.
25

state courts' adjudications of this claim were not contrary to
clearly established federal law and did not involve an unreasonable
application of clearly established federal law. Nor were the state
court adjudications based on an unreasonable determination of the
facts in light of the evidence presented in the state court
proceedings. Thus, Anderson is not entitled to relief on the basis
of this claim.
Even assuming that the appellate court did not affirm the
denial of the Rule 3.850 motion on the merits or that the state
courts' adjudications of this claim are not entitled to deference
under AEDPA, Anderson's claim regarding his counsel's failure to
challenge the probable cause affidavit is still without merit. The
trial court's conclusion with respect to this claim is fully
supported by the record. In evaluating the performance prong of the
Strickland ineffectiveness inquiry, there is a strong presumption
in favor of competence. See Anderson v. Sec'y, Fla. Dep't of Corr.,
752 F.3d 881, 904 (11th Cir. 2014), cert. denied, 135 S.Ct. 1483
(2015). The presumption that counsel's performance was reasonable
is even stronger when, as in this case, defense counsel Mr. Thies
is an experienced criminal defense attorney.13 The inquiry is

13

"When courts are examining the performance of an experienced
trial counsel, the presumption that his conduct was reasonable is
even stronger." Chandler v. United States, 218 F.3d 1305, 1316
(11th Cir. 2000); see Williams v. Head, 185 F.3d 1223, 1229 (11th
Cir. 1999). James R. Thies, Sr. was admitted to the Florida Bar in
1982. See http://www.floridabar.org. At the time of Anderson's
trial in 2009, Thies was an experienced trial lawyer.
26

"whether, in light of all the circumstances, the identified acts or
omissions were outside the wide range of professionally competent
assistance."

Strickland,

466

U.S.

at

690.

"[H]indsight

is

discounted by pegging adequacy to 'counsel's perspective at the
time' . . . and by giving a 'heavy measure of deference to
counsel's judgments.'" Rompilla v. Beard, 545 U.S. 374, 381 (2005).
Thus, Anderson must establish that no competent attorney would have
taken the action that counsel, here, chose.
Moreover, the test for ineffectiveness is neither whether
counsel could have done more nor whether the best criminal defense
attorneys might have done more; in retrospect, one may always
identify shortcomings. Waters v. Thomas, 46 F.3d 1506, 1514 (11th
Cir. 1995) (stating that "perfection is not the standard of
effective assistance") (quotations omitted). Instead, the test is
whether what counsel did was within the wide range of reasonable
professional assistance. Ward v. Hall, 592 F.3d at 1164 (quotations
and citation omitted); Dingle v. Sec'y for Dep't of Corr., 480 F.3d
1092,

1099

(11th

Cir.

2007)

("The

question

is

whether

some

reasonable lawyer at the trial could have acted as defense counsel
acted in the trial at issue and not what 'most good lawyers' would
have done.") (citation omitted).
On the record in this case, counsel's performance was well
within the wide range of professionally competent assistance.
Anderson has failed to carry his burden of showing that his

27

counsel's representation fell outside that range of reasonably
professional assistance. Defense counsel extensively cross-examined
Detective Dangerfield and also inquired about her affidavit in the
arrest and booking report. See Tr. at 296-322. Even assuming
arguendo deficient performance by defense counsel, Anderson has not
shown prejudice. Therefore, Anderson's

ineffectiveness claim is

without merit since he has shown neither deficient performance nor
resulting prejudice. Anderson is not entitled to habeas relief on
the basis of this ineffectiveness ground. See Response at 19.
As the second subclaim, Anderson asserts that counsel was
ineffective because he failed to object to or challenge the
evidence that Denegal collected and "tampered" with before giving
it to the police. See Petition at 12-13; Reply at 2. Anderson
raised this ineffectiveness claim in his Rule 3.850 motion. The
post conviction court denied Anderson's motion as to this claim,
stating

that

Anderson

could

not

challenge

the

admissibility,

validity, or sufficiency of the evidence against him in a post
conviction motion. See Resp. Ex. N at 87. On Anderson's appeal, the
appellate court affirmed the trial court's denial per curiam, and
later denied Anderson's motion for rehearing.
Assuming Anderson sufficiently exhausted this ineffectiveness
claim, the claim is without merit. Upon review of the record in
this case, counsel's performance was well within the wide range of
professionally competent assistance. On direct examination, Denegal

28

testified as to how she assisted Detective Dangerfield in the
collection of some of A.C.'s clothing on May 8, 2007, the date of
the incident, when she was called to the crime scene.
[PROSECUTOR]:
Do
you
recall
any
detectives
at
the
scene
conducting
an
investigation?
[AHTARSHA DENEGAL14]: Ms.Dangerfield.
[PROSECUTOR]:
Now,
Dangerfield ask you to
A.C.['s] clothing?

did
Detective
collect some of

[AHTARSHA DENEGAL]: Yes.
[PROSECUTOR]: Do you recall what clothing
A.C. was wearing that day?
[AHTARSHA DENEGAL]: A white shirt with
pink lace at the shoulder and a skirt with
jeans and the same lace around the bottom of
it.
[PROSECUTOR]: Was she like wearing any
kind of undergarments?
[AHTARSHA DENEGAL]: Yes.
[PROSECUTOR]: What was she wearing?
[AHTARSHA
underwear.

DENEGAL]:

A

pair

[PROSECUTOR]: How did you
clothing off of A.C. that day?

of
get

pink
the

[AHTARSHA DENEGAL]: I took them off of
her.
[PROSECUTOR]: Okay. Where did you take
them off of her?

14

Ahtarsha Denegal is the mother of A.C. (the child victim).
Tr. at 179.
29

[AHTARSHA DENEGAL]: Upstairs in my
friends
-–
her
godmother's
house.
The
bathroom.
[PROSECUTOR]: Who is her godmother?
[AHTARSHA DENEGAL]: Aquanda Battle.
[PROSECUTOR]: Okay.
Aquanda's children?

And

who

is

[sic]

[AHTARSHA DENEGAL]: A.M.
[PROSECUTOR]: A.M. Did you remove all of
A.C.['s] clothing?
[AHTARSHA DENEGAL]: Yes.
[PROSECUTOR]:
underwear?

Did

that

include

her

[AHTARSHA DENEGAL]: Yes.
[PROSECUTOR]: When you removed A.C.['s]
underwear, did you do anything in particular?
[AHTARSHA DENEGAL]: I wiped her private,
her vagina, from front to back just like she
wipes.
[PROSECUTOR]: Okay. What part of the
panties did you use when you wiped A.C.['s]
vagina?
[AHTARSHA DENEGAL]: The seat.
[PROSECUTOR]: The seat? The inside or the
outside?
[AHTARSHA DENEGAL]: The inside.
[PROSECUTOR]: Okay. Did you wipe any
other part of A.C.['s] body with her clothing?
[AHTARSHA DENEGAL]: No.
[PROSECUTOR]: Okay. What did you do with
the clothing that you took off A.C.[?]
30

[AHTARSHA DENEGAL]: I handed them to Ms.
Dangerfield. Put them in a paper bag.
[PROSECUTOR]: And then you gave it to the
police?
[AHTARSHA DENEGAL]: And gave it to the
police.
Tr. at 180-82. Defense counsel cross-examined Denegal about her
collection of the evidence for Detective Dangerfield, see id. at
184-87, and the prosecutor briefly questioned Denegal on redirect,
see id. at 190. Counsel also cross-examined Detective Dangerfield
as to the collection of the evidence. See id. at 297-99.
Thus, the jury heard the facts surrounding the collection of
the child victim's clothing. Counsel cannot be faulted for failing
to challenge such evidence when there was no basis to exclude it.
Anderson failed to carry his burden of showing that his counsel's
representation fell outside that range of reasonably professional
assistance when counsel did not move to exclude the evidence. Even
assuming

arguendo

Anderson

has

not

deficient
shown

performance

prejudice.

He

by

has

defense
not

counsel,

shown

that

a

reasonable probability exists that the outcome of the case would
have

been

different

if

counsel

had

challenged

the

evidence.

Therefore, Anderson's ineffectiveness claim is without merit since
he has shown neither deficient performance nor resulting prejudice.
As the third subclaim, Anderson asserts that counsel was
ineffective because he failed to provide requested discovery to
Anderson. Anderson raised this ineffectiveness claim in his Rule
31

3.850 motion. The court denied the post conviction motion with
respect to this claim, stating in pertinent part:
Defendant alleges counsel was ineffective for
failing
to
provide
him
with
various
depositions during the pendency of the case.
Specifically, Defendant alleges that counsel
failed to provide him with several depositions
and as a result, Defendant was deprived of the
right to participate in his own defense. This
same issue was brought to this Court's
attention prior to trial at an in camera
hearing on April 13, 2009. (Hearing Transcript
Attached as Exhibit IA to Defendant's Motion
for Post Conviction Relief)[.15] The in camera
hearing addressed Defendant's allegations
which now form the basis of his postconviction claim for relie[f]. At the pretrial hearing, Defendant's complaints were
addressed on the record and defense counsel
was given the opportunity to respond to the
allegations. This Court asked Defendant if he
wished to continue to trial with defense
counsel as his attorney. Defendant indicated
that he did. In addition, the Court finds that
defense
counsel
provided
a
reasonable
explanation for the conduct that formed the
basis of Defendant's complaint. Consequently,
the Court finds Defendant cannot establish
either prong under Strickland and his third
sub-claim is denied.
Resp. Ex. N at 87. On Anderson's appeal, the appellate court
affirmed the trial court's denial per curiam, and later denied
Anderson's motion for rehearing.
On this record, the appellate court may have affirmed the
denial of Anderson's motion for post conviction relief on the
merits. If the appellate court addressed the merits, Anderson would

15

See Resp. Ex. N at 17-24, Transcript of the in camera
hearing on April 13, 2009.
32

not be entitled to relief because the state courts' adjudications
of this claim are entitled to deference under AEDPA. After a review
of the record and the applicable law, the Court concludes that the
state courts' adjudications of this claim were not contrary to
clearly established federal law and did not involve an unreasonable
application of clearly established federal law. Nor were the state
court adjudications based on an unreasonable determination of the
facts in light of the evidence presented in the state court
proceedings. Thus, Anderson is not entitled to relief on the basis
of this claim.
Even assuming that the appellate court did not affirm the
denial of the Rule 3.850 motion on the merits or that the state
courts' adjudications of this claim are not entitled to deference
under AEDPA, Anderson's claim, nevertheless, is without merit. The
record supports the trial court's conclusion. At the April 13, 2009
in camera hearing, counsel explained that he provided "copies of
everything," including transcribed depositions. Resp. Ex. N at 20,
21.

Seemingly

affirmed

that

satisfied
he

wanted

with
to

counsel's
proceed

to

explanation,
trial

with

Anderson
counsel's

representation. Id. at 24. Anderson has failed to point to any
facts showing that his counsel's representation fell outside that
range of reasonably professional assistance. Even assuming arguendo
deficient performance by defense counsel, Anderson has not shown
prejudice. Therefore, Anderson's ineffectiveness claim is without

33

merit

since

he

has

shown

neither

deficient

performance

nor

resulting prejudice.
As the fourth subclaim, Anderson asserts that counsel was
ineffective when he failed to impeach the child victim at trial.
Anderson raised this ineffectiveness claim in his Rule 3.850
motion. The court denied the post conviction motion as to this
claim, stating that "defense counsel did attempt to impeach the
victim as to both her allegedly inconsistent statements and the
alleged outside influence on her statements." Resp. Ex. N at 87-88.
On Anderson's appeal, the appellate court affirmed the trial
court's denial per curiam, and later denied Anderson's motion for
rehearing.
On this record, the appellate court may have affirmed the
denial of Anderson's motion for post conviction relief on the
merits. If the appellate court addressed the claim on the merits,
Anderson would not be entitled to relief because the state courts'
adjudications of this claim are entitled to deference under AEDPA.
After a review of the record and the applicable law, the Court
concludes that the state courts' adjudications of this claim were
not contrary to clearly established federal law and did not involve
an unreasonable application of clearly established federal law. Nor
were

the

state

court

adjudications

based

on

an

unreasonable

determination of the facts in light of the evidence presented in

34

the state court proceedings. Thus, Anderson is not entitled to
relief on the basis of this claim.
Even assuming that the appellate court did not affirm the
denial of the Rule 3.850 motion on the merits or that the state
courts' adjudications of this claim are not entitled to deference
under AEDPA, Anderson's claim is without merit. The record supports
the trial court's conclusion. Based on the record in the instant
action,

counsel's

performance

was

within

the

wide

professionally competent assistance. See Response at

range

of

23; Tr. at

113-26 (defense counsel's cross-examination of A.C.). Even assuming
arguendo deficient performance by defense counsel for failing to
properly

impeach

the

child

victim,

Anderson

has

not

shown

prejudice. Thus, Anderson's ineffectiveness claim fails because he
has shown neither deficient performance nor resulting prejudice.
As the fifth subclaim, Anderson asserts that counsel was
ineffective because counsel failed to object to A.C.'s videotaped
interview that was altered to exclude her statements relating to
the man who works for her father and the other people present when
the incident occurred. Anderson raised this ineffectiveness claim
in his Rule 3.850 motion. The court denied the post conviction
motion with respect to this claim, stating in pertinent part:
Defendant alleges that counsel was ineffective
for failing to object to the admission of the
minor
victim's
video-taped
interview.
Specifically,
Defendant
alleges
defense
counsel should have objected to the fact that
the video was altered and did not include the
35

victim's statement "the man works for my
father." Having reviewed the record, the Court
finds the complete interview was played for
the jury. (Exhibit "D," pages 4-26.) In
addition,
at
trial,
defense
counsel
highlighted the child's statement regarding
the individual who worked for her father.
(Exhibit "C," pages 137-138.) Accordingly,
Defendant's claim lacks any factual or legal
basis. . . .
Resp. Ex. N at 88. As previously stated, on Anderson's appeal, the
appellate court affirmed the trial court's denial per curiam, and
later denied Anderson's motion for rehearing.
Given the record in the instant action, the appellate court
may

have

affirmed

the

denial

of

Anderson's

motion

for

post

conviction relief on the merits. If the appellate court addressed
the merits, Anderson would not be entitled to relief because the
state courts' adjudications of this claim are entitled to deference
under AEDPA. After a review of the record and the applicable law,
the Court concludes that the state courts' adjudications of this
claim were not contrary to clearly established federal law and did
not involve an unreasonable application of clearly established
federal law. Nor were the state court adjudications based on an
unreasonable determination of the facts in light of the evidence
presented in the state court proceedings. Accordingly, Anderson is
not entitled to relief on the basis of this claim.
Even assuming that the appellate court did not affirm the
denial of the Rule 3.850 motion on the merits or that the state
courts' adjudications of this claim are not entitled to deference
36

under AEDPA, Anderson's claim, nevertheless, is without merit. The
trial court's conclusion is fully supported by the record. As the
post conviction court stated, "the complete interview was played
for the jury." Resp. Ex. N at 88; see Tr. at 133 (stating "video
played"); Resp. Ex. F at 7-33, A.C.'s Interview Tr. Based on the
record in the instant case, counsel's performance was within the
wide range of professionally competent assistance. Even assuming
arguendo deficient performance by defense counsel, Anderson has not
shown prejudice. Therefore, Anderson's ineffectiveness claim fails
because he has shown neither deficient performance nor resulting
prejudice.
IX. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Anderson seeks issuance of a certificate of appealability,
the undersigned opines that a certificate of appealability is not
warranted. This Court should issue a certificate of appealability
only if the petitioner makes "a substantial showing of the denial
of a constitutional right." 28 U.S.C. §2253(c)(2). To make this
substantial showing, Anderson "must demonstrate that reasonable
jurists

would

find

the

district

court's

assessment

of

the

constitutional claims debatable or wrong," Tennard v. Dretke, 542
U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that "the issues presented were 'adequate to deserve
encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S.

37

322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
n.4 (1983)).
Where

a

constitutional

district
claims

court
on

the

has

rejected

merits,

the

a petitioner's
petitioner

must

demonstrate that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong. See
Slack, 529 U.S. at 484. However, when the district court has
rejected a claim on procedural grounds, the petitioner must show
that "jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling." Id. Upon
consideration of the record as a whole, this Court will deny a
certificate of appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.

The Petition (Doc. 1) is DENIED, and this action is

DISMISSED WITH PREJUDICE.
2.

The Clerk of the Court shall enter judgment denying the

Petition and dismissing this case with prejudice.
3.

If Anderson appeals the denial of the Petition, the Court

denies a certificate of appealability. Because this Court has
determined that a certificate of appealability is not warranted,
the Clerk shall terminate from the pending motions report any

38

motion to proceed on appeal as a pauper that may be filed in this
case.

Such termination shall serve as a denial of the motion.
4.

The Clerk of the Court is directed to close this case and

terminate any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 13th day of
April, 2015.

sc 4/13
c:
Roderick Damone Anderson
Ass't Attorney General (Heller)

39