Silas v. Secretary, Department of Corrections et al

Filing 19

ORDER denying the Petition, and dismissing the action with prejudice, with instructions to the Clerk. Signed by Judge Marcia Morales Howard on 11/15/2016. (BL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

BURKE LYNTONIA SILAS,
Petitioner,
v.

Case No. 3:13-cv-1275-J-34MCR

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
ORDER
I. Status
Petitioner Burke Lyntonia Silas, an inmate of the Florida
penal system, initiated this action on October 22, 2013, by filing
a pro se Petition for Writ of Habeas Corpus (Petition; Doc. 1)
under 28 U.S.C. § 2254 and a Memorandum of Law in Support of
Petition for Writ of Habeas Corpus (Doc. 2). In the Petition, Silas
challenges a 2010 state court (Duval County, Florida) judgment of
conviction for sexual battery upon a mentally defective person.
Respondents have submitted a memorandum in opposition to the
Petition. See Respondents' Answer in Response to Order to Show
Cause and Petition for Writ of Habeas Corpus (Response; Doc. 14)
with exhibits (Resp. Ex.). On December 17, 2013, the Court entered
an

Order

to

Show

Cause

and

Notice

to

Petitioner

(Doc.

6),

admonishing Silas regarding his obligations and giving Silas a time
frame in which to submit a reply. Silas submitted a brief in reply.

See Petitioner's Reply to Respondents' Response to Show Cause Order
(Reply; Doc. 18). This case is ripe for review.
II. Procedural History
On February 11, 2009, the State of Florida, in Case No. 162009-CF-001558, charged Silas with sexual battery upon a mentally
defective person. Resp. Ex. A at 10, Information.1 In April 2010,
Silas proceeded to trial, see Resp. Exs. E; F; G, Transcripts of
the Jury Trial (Tr.), at the conclusion of which, on April 6, 2010,
a jury found him guilty of sexual battery upon a mentally defective
person, as charged. Id. at 397; Resp. Ex. A at 134, Verdict. On
June

3,

2010,

the

court

sentenced

Silas

to

a

term

of

life

imprisonment. Resp. Ex. B at 201-06, Judgment; 263-89.
On December 10, 2010, Silas, with the benefit of counsel,
filed a motion to correct sentencing error pursuant to Florida Rule
of Criminal Procedure 3.800(b)(2). Resp. Ex. H at 1-8. On February
8, 2011, the trial court denied his motion. Id. at 9-71.
On direct appeal, Silas, with the benefit of counsel, filed an
initial brief, arguing that the circuit court erred when it: failed
to conduct an adequate inquiry into Silas's request to discharge
counsel (ground one), and excluded the testimony of Dr. Valente as
to Silas's borderline intelligence to support the defense theory
(ground two). Resp. Ex. I. As ground three, Silas asserted that his

1

The first trial resulted in a mistrial on February 12, 2010.
See Resp. Exs. A at 58-60; C; D.
2

life

sentence

as

a

habitual

felony

offender

violated

the

constitutional prohibition against cruel and unusual punishment.
Id. The State filed an answer brief, see Resp. Ex. J, and Silas
filed a reply brief, see Resp. Ex. K. On September 23, 2011, the
appellate court affirmed Silas's conviction per curiam, see Silas
v. State, 75 So.3d 274 (Fla. 1st DCA 2011); Resp. Ex. L, and denied
his motion for rehearing on November 8, 2011, see Resp. Exs. M; N.
The mandate issued on November 28, 2011. See Resp. Ex. O.
On March 15, 2012, pursuant to the mailbox rule, Silas filed
a pro se motion for post-conviction relief pursuant to Florida Rule
of Criminal Procedure 3.850. See Resp. Ex. P. In his request for
post-conviction relief, he asserts that counsel was ineffective
because

he

failed

to:

object

to

the

legally

insufficient

Information (ground one); object to his habitual felony offender
sentence (ground three); and call an alibi witness (ground four).
He also asserted that the court lacked subject matter jurisdiction
because the Information was legally insufficient (ground two), and
the evidence was insufficient for a jury to find him guilty (ground
five). See id. On January 30, 2013, the court denied his Rule 3.850
motion, see Resp. Ex. Q, and denied his motion for rehearing on
March 5, 2013, see Resp. Exs. R; S. Silas did not timely appeal the
court's denial. See Response at 2.
On July 21, 2016, Silas filed a pro se petition for belated
appeal. See http://www.1dca.org, No. 1D16-3310. The appellate court

3

denied Silas's petition for belated appeal on the merits on
September 13, 2016. See Silas v. State, No. 1D16-3310, 2016 WL
4766405 (Fla. 1st DCA Sept. 13, 2016). Silas's September 28, 2016
motion for rehearing remains pending. See http://www.1dca.org, No.
1D16-3310.
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 a habeas corpus proceeding, the burden is on the petitioner
to establish the need for a federal evidentiary hearing. See Chavez
v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir.
2011). "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); Jones v. Sec'y,
Fla. Dep't of Corr., No. 13-15053, 2016 WL 4474677, at *14 (11th
Cir. Aug. 25, 2016). "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." Schriro, 550 U.S. at 474. The pertinent facts of this
case are fully developed in the record before the Court. Because
this

Court

can

"adequately

assess

4

[Silas'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 Silas'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
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

relitigation

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, 562
U.S. 86, 98 (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:
5

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
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
6

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
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), cert. denied, 135 S.Ct. 2323 (2015); see also Hittson
v. GDCP Warden, 759 F.3d 1210, 1230 (11th Cir. 2014), cert. denied,
135 S.Ct. 2126 (2015).
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
7

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[.]"); see Richter, 562 U.S. at 100 (holding and
reconfirming 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'"). Recently, the Eleventh Circuit instructed:
Under section 2254(d), a federal court
reviewing the judgment of a state court must
first identify the last adjudication on the
merits. It does not matter whether that
adjudication provided a reasoned opinion
because section 2254(d) "refers only to 'a
decision'" and does not "requir[e] a statement
of reasons." Id. at 98, 131 S.Ct. 770.[2] The
federal court then must review that decision
deferentially.
Wilson v. Warden, Ga. Diagnostic Prison, No. 14-10681, 2016 WL
4440381, at *6 (11th Cir. Aug. 23, 2016) (en banc). Once the
federal court has identified the last adjudication on the merits,
it must review that decision under the deferential standard of
section 2254(d). Id.
When the last adjudication on the merits
provides no reasoned opinion, federal courts
review that decision using the test announced
in Richter. In Richter, . . . the Supreme
Court of the United States ruled that,
"[w]here
a
state
court's
decision
is
unaccompanied
by
an
explanation,"
a
petitioner's burden under section 2254(d) is
to "show[] there was no reasonable basis for
the state court to deny relief." Id. at 98,
131 S.Ct. 770. "[A] habeas court must
determine what arguments or theories supported

2

Harrington v. Richter, 562 U.S. 86, 98 (2011).
8

or, as here, could have supported, the state
court's decision; and then it must ask whether
it is possible fairminded jurists could
disagree that those arguments or theories are
inconsistent with the holding in a prior
decision of [the] Court." Id. at 102; 131
S.Ct. 770....
Id. at *5.
As such, the Eleventh Circuit instructed that "federal courts
should not . . . assume that the summary affirmances of state
appellate courts adopt the reasoning of the court below." Id. at
*7. Nevertheless, when assessing whether there "was no reasonable
basis for the state court to deny relief," Richter, 562 U.S. at 98,
"a federal habeas court may look to a previous opinion as one
example of a reasonable application of law or determination of
fact." Wilson, 2016 WL 4440381, at *9. The Eleventh Circuit
explained the role of the state trial court's reasoned opinion
under these circumstances as follows:
When the reasoning of the state trial court
was reasonable, there is necessarily at least
one reasonable basis on which the state
supreme court could have denied relief and our
inquiry ends. In this way, federal courts can
use previous opinions as evidence that the
relevant state court decision under review is
reasonable. But the relevant state court
decision for federal habeas review remains the
last adjudication on the merits, and federal
courts are not limited to assessing the
reasoning of the lower court.
Id. Thus, to the extent that Silas's claims were adjudicated on the
merits in the state courts, they must be evaluated under 28 U.S.C.
§ 2254(d).
9

VI. Exhaustion/Procedural Default
There are prerequisites to 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)(1)(A). 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.
10

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,[3] supra, at 747–748, 111 S.Ct.
2546; Sykes,[4] 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

3

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

4

Wainwright v. Sykes, 433 U.S. 72 (1977).
11

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 order for
Petitioner to establish cause,
the procedural default "must result from some
objective factor external to the defense that
prevented [him] from raising the claim and
which cannot be fairly attributable to his own
conduct." McCoy v. Newsome, 953 F.2d 1252,
1258 (11th Cir. 1992) (quoting Carrier, 477
U.S. at 488, 106 S.Ct. 2639). Under the
prejudice prong, [a petitioner] must show that
"the
errors
at
trial
actually
and
substantially disadvantaged his defense so
that he was denied fundamental fairness." Id.
at 1261 (quoting Carrier, 477 U.S. at 494, 106
S.Ct. 2639).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).
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

12

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.[5] "This exception is
exceedingly narrow in scope," however, and
requires proof of actual innocence, not just
legal innocence. Johnson v. Alabama, 256 F.3d
1156, 1171 (11th Cir. 2001).
Ward, 592 F.3d at 1157. "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." Calderon 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.

5

Murray v. Carrier, 477 U.S. 478 (1986).
13

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"
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.

14

Richter, 562 U.S. at 104. The Eleventh Circuit has recognized "the
absence of any iron-clad rule requiring a court to tackle one prong
of the Strickland test before the other." Ward, 592 F.3d at 1163.
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." Id. (citing Holladay v. Haley, 209 F.3d
1243, 1248 (11th Cir. 2000)). As stated in Strickland: "If it is
easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, which we expect will often be so, that
course should be followed." Strickland, 466 U.S. at 697.
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
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

15

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). "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." Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th
Cir. 2004). As such, "[s]urmounting 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, Silas asserts that counsel (Assistant Public
Defender Nathan Edward Carter) was ineffective because he failed to
interview and call Silas's alibi witness, Ms. Daphne Hill. See
Petition at 5. Silas raised the ineffectiveness claim in his Rule
3.850 motion in state court, and the court ultimately denied the
post-conviction motion with respect to this claim, stating in
pertinent part:
In Ground Four, Defendant claims that
counsel failed to call Ms. Daphne Hill whom he
alleges would testify that Defendant and the
victim had consensual sex, that Defendant did
not know the victim was mentally retarded, and
that there was no way to determine that the
victim was mentally retarded. Def. Mot.
17-21.[6]

6

See Resp. Ex. P.
16

A witness who lacks personal knowledge of
the matter may not testify. § 90.604.1, Fla.
Stat. (2009); see Roseman v. Town Square
Ass'n. Inc., 810 So.2d 516, 521 (Fla. 4th DCA
2001) (excluding witness's testimony that
residents were adjusting a door because that
witness did not actually see anyone adjust the
door). Moreover, it is well settled that a
witness
cannot
testify
to
matters
of
conjecture. Kennard v. State, 28 So. 858, 859
(Fla. 1900). Defendant testified that he and
the victim had consensual sex. (Ex. I. at
173-76.)[7] At no time did Defendant testify
that Ms. Hill was present when Defendant and
the victim had sex.[8] Consequently, Ms. Hill
does not have personal knowledge that at the
time of the encounters, the victim consented
to have sex with Defendant. Likewise Ms. Hill
does
not
have
personal
knowledge
that
Defendant had reason to believe or had actual
knowledge
that
the
victim
is
mentally
retarded. Defendant alleges that Ms. Hill
would testify that there is "no way to
determine the alleged victim is mentally
defective . . . ." Def. Mot. 18. Only an
expert witness can offer an opinion that
requires specialized knowledge.
If a witness is not testifying as an
expert, the witness's testimony
about what he perceives may be in
the form of inference and opinion
when:
(1) The witness cannot readily, and
with equal accuracy and adequacy,
communicate what he or she has
perceived to the trier of fact
without testifying in terms of
inferences or opinions and the
witness's use of inferences or
opinions will not mislead the trier

7

8

See Tr. at 322-25 (Silas's testimony).
See Tr. at 325, 331, 340-41 (Silas's references to Daphne

Hill).
17

of fact to the prejudice of the
objecting party; and
(2) The opinions and inference do
not require a special knowledge,
skill, experience, or training.
§ 90.701, Fla. Stat. (2009). "Witness opinion
testimony is admissible if it is within the
ken of an intelligent person with a degree of
experience." Floyd v. State, 569 So. 2d 1225,
1232 (Fla. 1990)[;] see Kelvin v. State, 610
So.2d 1359, 1364 (Fla. 1st DCA 1992) (holding
that a witness was not qualified to testify to
the trajectory of the bullets when he had no
training in ballistics). "The scope of section
90.701 is usually limited to matters relating
to distance, time, size, weight, form, and
identity, which are easily observable."
Bartlett v. State, 993 So. 2d 157, 164 (Fla.
1st DCA 2008). Although Ms. Hill could testify
to the observable facts relating to the
victim's condition, she could not, as a lay
witness, make an objective conclusion as to
whether one could determine that the victim is
mentally retarded. Such a determination was
for the jury to make based on the facts
presented at trial.
To make out a claim for relief, a
defendant must demonstrate both counsel's
deficiency and how this deficiency prejudiced
the outcome of the proceedings. Strickland,[9]
466 U.S. at 687; Stephens v. State, 748 So.2d
1028, 1031 (Fla. 1999). To demonstrate
prejudice, a 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. A
reasonable probability is a probability
sufficient to undermine confidence in the
outcome." Strickland, 466 U.S. at 694; Valle
v. State, 778 So.2d 960, 965-66 (Fla. 2001). A
forensic psychologist, who specializes in
learning disability evaluations, testified for

9

Strickland v. Washington, 466 U.S. 668 (1984).
18

the State.[10] He interviewed the victim and
testified that the victim has physical traits
of mental retardation, has low communication
skills, and does not understand what sex is.
(Ex. I at 114-15; 119-20; 141-42.) Moreover,
the State presented a videotape of the
psychologist's interview with the victim,
demonstrating the victim's mental state. (Ex.
I at 123-40.)[11] Finally, the jury observed
the victim when she testified. (Ex. I at
71-83.)[12] There was sufficient evidence from
the testimony of one with special knowledge,
skill, experience or training and from the
presentation of observable facts for the jury
to find: the victim did not consent to having
sex with Defendant; the victim is mentally
retarded; and Defendant had reason to believe
or actual knowledge that the victim is
mentally retarded. Defendant is unable to
establish that Ms. Hill's testimony would have
changed the outcome of the proceedings.
Defendant is not entitled to relief on this
claim.
Resp. Ex. Q at 5-7. Silas did not appeal the post-conviction
court's denial. Respondents contend that the claim is procedurally
barred since Silas failed to appeal the court's denial. See
Response at 13. On this record, the Court agrees that the claim has
not been exhausted, and is therefore procedurally barred since
Silas failed to raise the claim in a procedurally correct manner.
Silas has not shown either cause excusing the default or actual

10

See Tr. at 255-94 (Dr. Jerry Valente's testimony).

11

See Tr. at 272-89 (Dr. Valente's videotaped interview with
the victim).
12

See Tr. at 220-32.
19

prejudice resulting from the bar.13 Moreover, he has failed to
identify any fact warranting the application of the fundamental
miscarriage of justice exception.
Assuming that Silas's claim is not procedurally barred, Silas
is not entitled to relief. The state post-conviction court's
adjudication of this claim is entitled to deference under AEDPA.
After a review of the record and the applicable law, the Court
concludes that the state court's adjudication of this claim was not
contrary to clearly established federal law and did not involve an
unreasonable application of clearly established federal law. Nor
was

the

state

court's

adjudication

based

on

an

unreasonable

determination of the facts in light of the evidence presented in
the state court proceedings. Accordingly, Silas is not entitled to
relief on the basis of this claim.
Even assuming that the state court's adjudication of this
claim is not entitled to deference, and that the claim presents a
sufficiently exhausted issue of federal constitutional dimension,
Silas's claim is, nevertheless, without merit. The record fully
supports

the

trial

court's

conclusion.

13

In

evaluating

the

"To overcome the default, a prisoner must also demonstrate
that the underlying ineffective-assistance-of-trial-counsel claim
is a substantial one, which is to say that the prisoner must
demonstrate that the claim has some merit." Martinez, 132 S.Ct. at
1318 (citation omitted). As discussed in the alternative merits
analysis that follows, this ineffectiveness claim lacks any merit.
Therefore, Silas has not shown that he can satisfy an exception to
the bar.
20

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 inquiry is "whether, in
light of all the circumstances, the identified acts or omissions
were

outside

assistance."

the

wide

Strickland,

range
466

of

U.S.

professionally
at

690.

competent

"[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, Silas 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, 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

21

acted in the trial at issue and not what 'most good lawyers' would
have done.") (citation omitted).
On this record, Silas has failed to carry his burden of
showing that his counsel's representation fell outside that range
of reasonably professional assistance. As the Eleventh Circuit has
recognized, "[t]here is much wisdom for trial lawyers in the adage
about

leaving

well

enough

alone."

Waters,

46

F.3d

at

1512.

Counsel's decision as to "[w]hich witnesses, if any, to call, and
when to call them, is the epitome of a strategic decision, and it
is one that [the court] will seldom, if ever, second guess." Id.;
Chandler v. United States, 218 F.3d 1305, 1314 n.14 (11th Cir.
2000) (describing the decision to call some witnesses and not
others as "the epitome of a strategic decision" (quotation marks
and citation omitted)). Moreover, "evidence about the testimony of
a putative witness must generally be presented in the form of
actual testimony by the witness or on affidavit. A defendant cannot
simply state that the testimony would have been favorable; selfserving speculation will not sustain an ineffective assistance
claim." United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991).
Even

assuming

arguendo

deficient

performance

by

defense

counsel, Silas has not shown any resulting prejudice. He has not
shown that a reasonable probability exists that the outcome of the
case would have been different if counsel had interviewed and
called Ms. Daphne Hill at trial as a defense witness. Silas

22

referred to Ms. Hill a few times during his testimony, but none of
his references described a scenario at which Ms. Hill was present
when Silas and the victim engaged in sexual relations. See Tr. at
325, 331, 340-41. As the post-conviction court stated, there was
sufficient evidence for the jury to find that the victim did not
consent to having sexual intercourse with Silas, and that the
victim was mentally retarded and Silas "had reason to believe or
actual knowledge that the victim was mentally retarded." Resp. Ex.
Q at 7; see Fla. Stat. § 794.011(4)(e); Tr. at 379. Silas's
ineffectiveness claim is without merit since he has shown neither
deficient performance nor resulting prejudice. Accordingly, Silas
is not entitled to federal habeas relief on ground one.
B. Ground Two
As ground two, Silas asserts that the evidence was not
sufficient to sustain the conviction. Silas raised the claim in his
Rule 3.850 motion in state court, and the court ultimately denied
the post-conviction motion with respect to this claim, stating in
pertinent part:
In Ground Five, Defendant alleges that
the evidence presented at trial was not
sufficient to convict him of the offense. A
defendant may not challenge the admissibility,
validity, or sufficiency of the evidence
against him or her in a motion seeking
postconviction relief. Betts v. State, 792
So.2d 589, 590 (Fla. 1st DCA 2001). Defendant
challenges the sufficiency of the evidence;
therefore, he is not entitled to relief.

23

Resp. Ex. Q at 7. Silas did not appeal the post-conviction court's
denial. Respondents contend that the claim is procedurally barred,
see Response at 15-16, and the Court agrees that the claim has not
been

exhausted.

As

Silas

failed

to

raise

the

claim

in

a

procedurally correct manner, it is procedurally barred. Silas 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,
Silas's claim is, nevertheless, without merit. The State presented
ample evidence to support Silas's conviction for sexual battery
upon a mentally defective person. The 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 the
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)

24

(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,
443 U.S. 319.
The Information charging Silas with sexual battery states, in
pertinent part:
BURKE LYNTONIA SILAS on or between August
16, 2008 and August 20, 2008, in the County of
Duval and the State of Florida, did commit a
sexual battery upon and without the consent of
S****** D***** S****, a person 12 years of age
or older, when S****** D***** S**** was
mentally defective and BURKE LYNTONIA SILAS
had reason to believe this or had actual
knowledge of that fact, by placing his penis
in or upon the vagina of S****** S****,
contrary
to
the
provisions
of
Section
794[.]011(4)(e), Florida Statutes[.]
Resp. Ex. A at 10, Information. The trial judge instructed the jury
that,

to

prove

the

crime

of

sexual

battery

upon

a

mentally

defective person, the State must prove four elements beyond a
reasonable doubt:
One, S****** D***** S**** was 12 years of age
or older; two, Burke Lyntonia Silas committed
an act upon S****** D***** S**** in which the
sexual
organ
of
Burke
Lyntonia
Silas
penetrated or had union with the vagina of
S****** D***** S****, three, S****** D*****
S**** was mentally defective and Burke
Lyntonia Silas had reason to believe this, or
had actual knowledge of that fact. And, four,
the act was committed without the consent of
S****** D***** S****.
25

Tr. at 379. The jury returned a verdict of guilty as charged. Id.
at 397.
After viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found Silas
committed sexual battery upon a mentally defective person, and as
such to support the conviction for sexual battery upon a mentally
defective person. Competent evidence of the elements of the offense
was introduced at trial, and no due process violation occurred. The
jury was entitled to believe the State witnesses and the victim.
Additionally, the jury heard the testimony of Dr. Valente, a
forensic psychologist, and watched Detective Haines' videotaped
interview of Silas and Dr. Valente's videotaped interview of the
victim, and therefore was entitled to make its own determination as
to the elements of the criminal offense.14 Given the record, the
trial court did not err in denying Silas's motions for judgment of
acquittal. See Tr. at 295-98, 343. The State's evidence at trial
amply supported the four elements required for a conviction.
Therefore, Silas is not entitled to habeas relief as to ground two.
C. Ground Three
As ground three, Silas asserts that counsel was ineffective
because he failed to have Silas tested for acute primary herpes
genitalis and present to the jury that the victim's attacker was
suspected of infecting the victim with herpes, and Silas did not

14

See Tr. at 198-207; 272-89.
26

have herpes. See Petition at 8. Upon review, it appears that Silas
failed to raise this claim in his Rule 3.850 motion. See Resp. Ex.
P. Respondents contend that the claim is procedurally barred since
Silas failed to present the claim in his post-conviction motion.
See Response at 17-18. On this record, the Court agrees that the
claim has not been exhausted, and is therefore procedurally barred
since Silas failed to raise the claim in a procedurally correct
manner. Silas 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,
Silas's claim is still without merit. The record reflects that
defense counsel called Nelson Aguilar, a physician's assistant at
the Duval County Jail. Aguilar testified that he examined Silas
"last Friday" (Friday, April 2, 2010) and did not see any herpes
lesions or visual symptoms of a sexually transmitted disease. Tr.
at 302-04. On cross-examination, Aguilar affirmed that it is common
for herpes to appear and then disappear. See id. at 305.
On this record, Silas has failed to carry his burden of
showing that his counsel's representation fell outside that range
of reasonably professional assistance.

Even assuming arguendo

deficient performance by defense counsel, Silas has not shown any
resulting prejudice. Silas's ineffectiveness claim is without merit
since he has shown neither deficient performance nor resulting
27

prejudice. Accordingly, Silas is not entitled to federal habeas
relief on ground three.
IX. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Silas 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
jurists

showing,

would

find

Silas
the

"must

district

demonstrate
court's

that

reasonable

assessment

of

the

constitutional claims debatable or wrong," Tennard v. Dretke, 542
U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that "the issues presented were 'adequate to deserve
encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003) (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
28

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 Silas 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
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 15th day of
November, 2016.

29

sc 11/7
c:
Burke Lyntonia Silas, FDOC #281725
Counsel of Record

30