Boone v. Secretary, Department of Corrections et al

Filing 23

ORDER denying 10 second amended petition; dismissing the action with prejudice, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 2/23/2017. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

HAROLD RAY BOONE,
Petitioner,
v.

Case No. 3:14-cv-1099-J-39JRK

SECRETARY, DOC, et al.,
Respondents.
ORDER
I.

INTRODUCTION

Petitioner Harold Ray Boone challenges a 2004 Suwannee County
conviction for: count one, lewd/lascivious conduct on a child
(solicitation) (victim A.H.); count two, attempted lewd/lascivious
exhibition in presence of a child (victim B.B.); count three,
capital sexual battery on a child under 12 years of age (victim
B.B.); count four, capital sexual battery on a child under 12 years
of age (victim B.B.); count five, lewd/lascivious molestation of a
child

under

12

years

of

age

(victim

B.B.);

count

six,

lewd/lascivious conduct on a child (solicitation) (victim A.S.
and/or A.H.); count seven, sexual performance by a child (victim
A.H. or A.S.); count eight, capital sexual battery on a child under
12 years of age (victim A.H.); count nine, capital sexual battery
on a child under 12 years of age (victim A.S.); count ten, capital
sexual battery on a child under 12 years of age (victim A.S.);
count eleven, capital sexual battery on a child under 12 years of

age (victim C.B.); count twelve, capital sexual battery on a child
under 12 years of age (victim C.B.); count thirteen, capital sexual
battery on a child under 12 years of age (victim C.B.); and count
fourteen, possession of child pornography.

See Second Amended

Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
Person in State Custody (Petition) (Doc. 10).
Petitioner raises six grounds of ineffective assistance of
counsel.

This Court must be mindful that in order to prevail on

this Sixth Amendment claim, Petitioner must satisfy the two-pronged
test set forth in Strickland v. Washington, 466 U.S. 668, 688
(1984),

requiring

that

he

show

both

deficient

performance

(counsel's representation fell below an objective standard of
reasonableness) and prejudice (there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different).
Respondents filed an Answer in Response to Order to Show Cause
and Petition for Writ of Habeas Corpus (Response) (Doc. 19).

In

support of their Response, they submitted Exhibits (Doc. 22).1
Petitioner filed a Reply to Respondents' Answer to Petition for
Writ of Habeas Corpus (Reply) (Doc. 21).

1

See Order (Doc. 12).

The Court hereinafter refers to the exhibits contained in
the Exhibits as "Ex." Where provided, the page numbers referenced
in this opinion are the Bates stamp numbers at the bottom of each
page of the Appendix. Otherwise, the page number on the particular
document will be referenced. The Court will reference the page
numbers assigned by the electronic docketing system where
applicable.
- 2 -

II.

CLAIMS OF PETITION

Petitioner raises six grounds in his Petition: (1) ineffective
assistance of counsel for failure to move to dismiss counts one,
two, five, and six of the information for failure to charge
criminal

offenses

at

the

time

that

they

allegedly

occurred,

resulting in illegal sentences; (2) ineffective assistance of
counsel for failure to object to the jury instruction for count
fourteen, possession of child pornography (possession of a motion
picture(s) and/or photographs); (3) ineffective assistance of
counsel for failure to object to a discovery violation; (4)
ineffective assistance of counsel for failure to move to dismiss
count 6 or count 7 on double jeopardy grounds, resulting in illegal
sentences for these two counts; (5) ineffective assistance of
counsel for failure to move for a judgment of acquittal for count
three; and (6) ineffective assistance of counsel for failure to
request a limiting instruction at the time Williams Rule evidence
was admitted at trial.
Respondents urge this Court to deny the Petition. Response at
10-31.

The Court will address these grounds, See Clisby v. Jones,

960 F.2d 925, 936 (11th Cir. 1992), but no evidentiary proceedings
are required in this Court.
III.

STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) governs a state prisoner's federal petition for habeas

- 3 -

corpus. See 28 U.S.C. § 2254; Ledford v. Warden, Ga. Diagnostic &
Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), petition
for cert. filed, – U.S. - (U.S. Oct. 14, 2016) (No. 16-6444).
"'The purpose of AEDPA is to ensure that federal habeas relief
functions as a guard against extreme malfunctions in the state
criminal justice systems, and not as a means of error correction.'"
Id. (quoting Greene v. Fisher, 132 S.Ct. 38, 43 (2011)).
Under
AEDPA,
when
a
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). A state court's factual findings
are presumed correct unless rebutted by clear
and convincing evidence.[2] Id. § 2254(e)(1);
Ferrell v. Hall, 640 F.3d 1199, 1223 (11th
Cir. 2011).
..."It bears repeating that even a strong case
for relief does not mean the state court's
contrary
conclusion
was
unreasonable."
[Harrington v. Richter, 562 U.S. 86, 101
(2011)] (citing Lockyer v. Andrade, 538 U.S.
63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144
(2003)). The Supreme Court has repeatedly
instructed lower federal courts that an
unreasonable application of law requires more
than mere error or even clear error. See,

2

"This presumption of correctness applies equally to factual
determinations made by the state trial and appellate courts." Pope
v. Sec'y for Dep't of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012)
(quoting Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir. 2003)), cert.
denied, 133 S.Ct. 1625 (2013).
- 4 -

e.g., Mitchell v. Esparza, 540 U.S. 12, 18,
124 S.Ct. 7, 157 L.Ed.2d 263 (2003); Lockyer,
538 U.S. at 75 ("The gloss of clear error
fails to give proper deference to state courts
by conflating error (even clear error) with
unreasonableness."); Williams v. Taylor, 529
U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000) ("[A]n unreasonable application of
federal law is different from an incorrect
application of federal law.").
Bishop v. Warden, GDCP, 726 F.3d 1243, 1253–54 (11th Cir. 2013),
cert. denied, 135 S.Ct. 67 (2014).
In applying AEDPA deference, the first step is to identify the
last state court decision that evaluated the claim on its merits.
See Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d 1227, 1235
(11th Cir. 2016) (en banc), petition for cert. filed, - U.S. (U.S. Nov. 10, 2016) (No. 16-6855); Marshall v. Sec'y, Fla. Dep't
of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016).

Regardless of

whether the last state court provided a reasoned opinion, "it may
be presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law procedural
principles to the contrary."

Richter, 562 U.S. at 99; see also

Johnson v. Williams, 133 S.Ct. 1088, 1096 (2013).
Where the last adjudication on the merits 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.'" Wilson, 834 F.3d at 1235 (quoting Richter, 562 U.S.
at 98). "[A] habeas court must determine what arguments or theories
supported or, as here, could have supported, the state court's
- 5 -

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."
Richter, 562 U.S. at 102; see also Wilson, 834 F.3d at 1235;
Marshall, 828 F.3d at 1285. To determine which theories could have
supported the state appellate court's decision, the federal habeas
court may look to a state trial court's previous opinion as one
example of a reasonable application of law or determination of
fact; however, the federal habeas court is not limited to assessing
the reasoning of the lower court.

Wilson, 834 F.3d at 1239. As

such,
even when the opinion of a lower state court
contains flawed reasoning, [AEDPA] requires
that [the federal court] give the last state
court to adjudicate the prisoner's claim on
the merits "the benefit of the doubt," Renico
[v. Lett, 449 U.S. 766, 733 (2010)] (quoting
[Woodford v. Visciotti, 537 U.S. 19, 24
(2002)] ), and presume that it "follow[ed] the
law," [Woods v. Donald, ––– U.S. ––––, 135
U.S. 1372, 1376 (2015)] (quoting Visciotti,
537 U.S. at 24).
Wilson at 1238; see also Williams, 133 S.Ct. at 1101 (Scalia, J.,
concurring).
IV.
Respondents
Response.

provide

PROCEDURAL HISTORY
a

Response at 1-3.

brief

procedural

history

in

their

Petitioner accepts this procedural

history as accurately presented.

Reply at 1.

- 6 -

V.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.

Ground One

In his first ground, Petitioner claims ineffective assistance
of counsel for failure to move to dismiss counts one, two, five,
and six of the information for failure to charge criminal offenses
at the time that they allegedly occurred, resulting in illegal
sentences.

Petition at 5.

Petitioner exhausted this ground by

raising it in ground two of his Second Amended Rule 3.850 motion.
Ex. P at 6-8.

The trial court denied relief, id. at 158-61, and

the First District Court of Appeal per curiam affirmed.

Ex. S.

Of import, the state circuit court recognized the applicable
two-pronged standard as set forth in Strickland as a preface to
addressing
counsel.

the

multiple

Ex. P at 157.

claims

of

ineffective

assistance

of

In this particular claim of ineffective

assistance of counsel, Petitioner asserted that the conduct charged
in counts one, two, five, and six may not have been criminal
offenses because the jury did not specifically find that Petitioner
committed the offenses after October 1, 1999, when the law was
amended.

Id. at 158.

The court found that all of the counts were

criminal offenses prior to October 1, 1999, and all were second
degree felonies prior to October 1, 1999.3

3

Id. at 158-61.

After the state's concession, the circuit court determined
that Petitioner's Rule 3.800(a) motion should be granted and
Petitioner resentenced on counts one, five, six, and seven. Ex. P
at 92, 105-21. The court originally sentenced Petitioner to life
without parole on count one, and to thirty-year sentences on counts
five, six, and seven. Ex. A at 75-77, 87-95. They were all second
- 7 -

In

reviewing

each

count,

the

circuit

court

concluded

Petitioner failed to meet the prejudice prong of Strickland.

With

respect to count one, the court decided there was no prejudice,
because even if counsel had successfully moved to dismiss count
one, the state would have re-charged the same conduct under a
different provision.

Ex. P at 159.

"[A]ccordingly, there could

have been no prejudice from Counsel's alleged ineffectiveness, as
the Defendant could have been convicted of another crime carrying
the same degree of felony and the same maximum sentence for the
charged conduct."

Id.

The court went on to find that the conduct

alleged in count one ("soliciting A.H. to dance with her vagina and
anus exposed") was a criminal act "during all respective times
charged in the amended information (January 1, 1999 through March
31, 2000)."

Id.

In addressing Petitioner's claim with respect to count two,
the court found that the charge of masturbating in the presence of
a child under 16 years of age could have been charged under a
different provision (800.04(4), Fla. Stat., rather than 800.04(7),
Fla. Stat.), if the offense occurred prior to October 1, 1999. Ex.
P at 160.

The conduct amounted to a second-degree felony under

either version because the Petitioner is over eighteen years of age
(as alleged in the amended information).

Id.

degree felonies, with a statutory maximum
Pursuant to a stipulation of the parties,
resentenced Petitioner on counts one, five,
concurrent fifteen-year terms in prison. Id.
- 8 -

See Ex. A at 19.

of fifteen years.
the circuit court
six, and seven to
at 105-21.

The circuit court also found that, with regard to count six, the
charge of soliciting children under the age of 16 to rub vaginas,
the offense could have been charged under 800.04(2), Fla. Stat.,
which prohibited forcing or enticing a child to commit masturbation
or actual lewd exhibition of the genitals.

Ex. P at 160.

Again,

the circuit court found that under both versions of the statute,
these criminal actions constituted second degree felonies because
Petitioner was over 18 years of age.

Id.

See Ex. A at 20.

In conclusion, the court opined:
As explained in this Court's discussion
of Count I, if Counsel had successfully raised
either of the charging errors regarding Counts
II and VI, the State could have filed an
amended information properly charging the
illegal conduct under the earlier version of
the statute.
Anderson, 537 So.2d at 1375.
Therefore, applying the same analysis, the
alleged conduct remained criminal at all
relevant times under section 800.04, and the
Defendant cannot establish the necessary
prejudice to warrant relief. See Tukes, 346
So.2d at 1056; Wood, 354 So.2d at 135.
Ex. P at 160.
Finally, with regard to count five, the circuit court found
the behavior charged, including the touching of the buttocks of a
person under the age of 16 in a lewd or lascivious manner, was a
criminal offense under the earlier-version of 800.04(1), Fla. Stat.
Ex. P at 161.

The court noted that both the pre-amendment and

post-amendment versions of the statute classified the conduct as
criminal and as a second degree felony, because Petitioner is over
the age of 18.

See Ex. A at 20.

The court found Petitioner was

- 9 -

not prejudiced, concluding that even if counsel had successfully
raised the issue, the state simply could have re-charged the
offense under the appropriate version of the statute because the
conduct was, at all relevant times, illegal under 800.04. Ex. P at
161.
After vetting each count, the circuit court summarized the
above and concluded that counsel's performance was not deficient
under Strickland and denied the claim raised in the second ground
of the Second Amended Rule 3.850 motion.

The First District Court

of Appeal (1st DCA) affirmed.
This Court presumes that the 1st DCA adjudicated the claim on
its merits, as there is an absence of any indication or state-law
procedural principles to the contrary.

Also of note, the last

adjudication on the merits is unaccompanied by an explanation.
Thus, it is Petitioner's burden to show there was no reasonable
basis for the state court to deny relief.

He has not accomplished

that task.
Indeed, if there is any reasonable basis for the court to deny
relief, the denial must be given deference.

Here, deference under

AEDPA should be given to the 1st DCA's adjudication.
is

not

inconsistent

with

Stickland and its progeny.
claim

is

not

contrary

to

Supreme

Court

Its decision

precedent,

including

The state court's adjudication of this
or

an

unreasonable

application

of

Strickland, or based on an unreasonable determination of the facts.
Ground one is due to be denied.
- 10 -

B.

Ground Two

In his second ground, Petitioner contends that his counsel was
ineffective for failure to object to the jury instruction for count
fourteen, possession of child pornography (possession of a motion
picture(s)

and/or

photographs).

Petition

at

7.

Petitioner

exhausted this ground by raising it in ground three of his Second
Amended Rule 3.850 motion.

Ex. P at 8-9.

The trial court denied

relief, id. at 161-62, and the 1st DCA affirmed per curiam.

Ex. S.

In this ground, Petitioner complains that although counsel
objected to the admission of some of the photographs (three altered
photographs), he failed to object to the jury instruction for count
fourteen.

As previously noted, the circuit court, in its decision

denying the Rule 3.850 motion, recognized the applicable twopronged Strickland standard before addressing the multiple claims
of ineffective assistance of counsel.

Ex. P at 157.

With regard

to this claim in particular, the court immediately found no
prejudice.

Ex. P 162.

In doing so, the court opined that because

the amended information charged the offense by possessing the
photographs or the motion picture, and the overwhelming evidence
presented at trial showed that Petitioner possessed the homemade
motion picture containing sexual conduct by a child, there was no
prejudice.

Id.

The circuit court reasoned that even if counsel's

performance was deficient "by failing to have the jury instructed
that

the

three

altered

photographs

(of

the

eleven

total

photographs) could not form the basis for a conviction[,]" there
- 11 -

was still no prejudice due to the overwhelming evidence of the
possession of the motion picture.

Id.

Of importance, the 1st DCA affirmed the decision of the
circuit court in denying this ground, and this Court will presume
that the state court adjudicated the claim on its merits, as there
is an absence of any indication or state-law procedural principles
to the contrary.

Since the last adjudication on the merits is

unaccompanied by an explanation, it is Petitioner's burden to show
there was no reasonable basis for the state court to deny relief.
He has failed in this regard.
Upon review, there is a reasonable basis for the court to deny
relief; therefore, the denial must be given deference.

The 1st

DCA's decision is not inconsistent with Supreme Court precedent,
including Stickland and its progeny.

Thus, the state court's

adjudication of this claim is not contrary to or an unreasonable
application

of

Strickland,

determination of the facts.

or

based

on

an

unreasonable

Accordingly, ground two is due to be

denied.
In the alternative, the record shows that counsel was aware
that three of the pictures had been altered and attempted to keep
them from being published to the jury.
to the three altered photographs.

Id.

Ex. E at 512.

He objected

The state responded that

they were not being offered as "child pornography so to speak[,]"
but

were

being

offered

because

they

were

relevant,

showing

Petitioner molesting the children. Id. at 514. The court admitted
- 12 -

the pictures.

Id.

Defense counsel asked that the three pictures

be delineated to identify which ones he objected to on the record.
Id.

Counsel stated he was not objecting to the other eight

photographs.

Id.

After the court's ruling, all of the pictures

were published to the jury.

Id. at 515.

In supplementing his motion for judgment of acquittal, counsel
reiterated that as far as the possession of child pornography
charge, his understanding was that the state had to show that the
child was under the age of 12.

Ex. F at 614.

He explained that

with regard to the three altered photographs, each photograph
portrays a child's head on someone else's body. Id. Therefore, he
argued there should be a judgment of acquittal with regard to the
possession of pornography charge because there was no proof that
the body in the three altered photographs was that of someone under
12 years of age.

Id.

The state responded that it had made a prima facie case by the
introducing the videotape, and the charge was videotapes and/or
photographs.
three

Id. at 615.

altered

The state admitted that "those [the

photographs]

aren't

pornographic

or

child

pornography, but the videotape is and the other photographs could
be."

Id.

because

The court denied the motion for judgment of acquittal

the

instruction

charge

included

mentioned

the

possession

videotapes.

Id.

of

picture

a

motion

The

jury

and/or

photographs which in whole or in part Petitioner knew included any
sexual conduct by a child.

Id. at 704.
- 13 -

Based on the rulings of the trial court, it did not amount to
deficient performance for counsel to fail to object to the jury
instruction.

He tried to keep the three altered photographs from

being admitted, but the trial court ruled against him.

When

counsel attempted to gain an acquittal based on those particular
altered photographs, the court denied the motion stating:
I think there's evidence of child
pornography.
You can make that argument to
the jury about the pictures. But he is going
to make the argument that it's the videos. So
I think that is the way we have to do it. I
will deny the motion on that count because I
think the videos also could be part of the
evidence in that particular count.
Ex. F at 615.
Defense counsel did not perform deficiently.

He objected to

the three photographs and he moved for acquittal on the pornography
count based on the three altered photographs.
rulings,

defense

instruction

does

counsel's
not

amount

failure
to

to

After the court's

object

deficient

to

the

performance.4

jury
Even

assuming Petitioner satisfies the performance prong of Strickland,
he

has

failed

to

satisfy

the

prejudice

prong

due

to

the

overwhelming evidence that Petitioner possessed the motion picture
containing child pornography.

4

Ex. P at 162.

Although the better course would have been for the trial
court not to have admitted the altered photographs, once the court
made its decision to allow them, any failure to object was
inconsequential.
- 14 -

C.

Ground Three

The third ground presents a claim of ineffective assistance of
counsel for failure to object to a discovery violation.
at 8.

Petition

Petitioner exhausted this ground by raising it in ground

four of his Second Amended Rule 3.850 motion.

Ex. P at 9-11.

The

trial court denied relief, id. at 162-66, and the 1st DCA affirmed
the circuit court's decision.

Ex. S.

The ground is founded upon an allegation that there was a
change in the testimony of a critical witness, the mother of victim
B.B., with respect to her deposition testimony compared to her
trial testimony. The record showed that B.B.'s mother, Jana Bogle,
briefly viewed one videotape prior to the deposition and she was
unable to identify numerous items depicted in the tape that would
have established that the tape was made in Florida.

After the

deposition, Ms. Bogle watched the videotapes at the behest of the
prosecutor, and she made notes, but she did not give them to the
state.

Ms. Bogle brought the notes to trial.

Defense counsel objected to the use of the notes.
588.

Ex. F at

He also requested a copy of the notes, stating he believed

them to be discoverable material.

Id.

The prosecutor responded

that he would give defense counsel a copy.

Id.

The court found

that the defense was entitled to a copy of the notes and they could
be used during cross examination.

Id. at 589.

Defense counsel

proceeded to reference the notes during his cross examination of
Ms. Bogle.

Id. at 601.
- 15 -

During cross examination, Ms. Bogle admitted that, in her
deposition testimony, she did not recognize many things that she
now recognized in the trailer.

Id. at 601.

She reminded counsel

that she did previously mention during her deposition that the
television was in the wall.

Id. at 602.

She reiterated that she

did not mention all of the additional items during her deposition.
Id.

On re-direct, Ms. Bogle pointed out that she had briefly

viewed one video at her father's house prior to the deposition, but
she had not viewed all of the tapes thoroughly.

Id. at 605.

The circuit court, after reviewing this claim of ineffective
assistance

of

counsel

and

referencing

the

record,

following:
Contrary to the Defendant's allegation
that the witness changed her testimony, this
Court finds that the witness was merely able
to recall or observe additional details that
she was not aware of at the time of her
deposition.
This is evidenced by the fact
that she explained that she did originally
recall and testify about "the TV being in the
wall" during her deposition-establishing that
the witness, after later reviewing the video
tape again, was able to observe additional
evidence that merely corroborated her earlier
deposition testimony.
See attached Trial
Transcript at 602.
There is no evidence or
indication that the State pressured the
witness to change her testimony or coached the
witness in any way.
Instead, as explained
above, the Defendant's trial counsel actually
illustrated the cause for the different
testimony-the witness more carefully reviewed
the video tapes after her deposition.
Moreover, as the record establishes, the
only time that the witness had observed any of
the video tapes prior to her deposition was on
- 16 -

held

the

the evening of their discovery when she found
out that her children had been sexually abused
by the Defendant.
See attached Trial
Transcript at 581. The witness's admission to
being "really shaken up" upon learning that
her children had been sexually abused further
explains her inability to recall specific
details concerning the location of the
trailer. In short, this Court is unwilling to
find that the witness's inability to recall
minute details from the video tape during her
deposition was intentional or calculated with
the State.
Instead, this Court finds it
reasonable that the witness, after being
directed to review the video tapes months
later, was able to easily identify objects
that pinpointed the trailer's location.
Ex. P at 165.
The court emphasized the fact that counsel effectively cross
examined the witness after she was able to recall additional
details.

Id.

The court also found that counsel effectively

attempted to impeach or discredit her testimony by asking her
extensively about the renovations to the trailer. Id. at 166. The
court determined that because the record showed that the witness
did not change her testimony, there was no merit to this claim of
ineffectiveness on counsel's part.

Id.

Finding no deficient

performance, the circuit court denied this claim. Id. The 1st DCA
affirmed.
With

regard

to

this

claim

of

ineffective

assistance

of

counsel, AEDPA deference should be given to the state court's
decision. The state court's ruling is well-supported by the record
and

by

controlling

case

law,

Strickland

and

its

progeny.

Petitioner raised the issue in his post conviction motion, the
- 17 -

trial court denied the motion, and the appellate court affirmed.
The Court concludes that the state court's adjudication of this
claim

is

not

contrary

to

or

an

unreasonable

application

of

Strickland, or based on an unreasonable determination of the facts.
Petitioner is not entitled to habeas relief on ground three.
D.

Ground Four

In his fourth ground, Petitioner raises a claim of ineffective
assistance of counsel for failure to move to dismiss count six or
count seven on double jeopardy grounds, resulting in illegal
sentences.

Petitioner exhausted this claim by raising it in his

Second Amended Rule 3.850 motion in ground six.
The circuit court denied this ground.
affirmed.

Ex. P at 12-13.

Id. at 167-69.

The 1st DCA

Ex. S.

The Double Jeopardy Clause "provides that no person shall 'be
subject for the same offense to be twice put in jeopardy of life or
limb.'
688,

U.S. Const., Amdt. 5."

695-96

(1993).

The

United States v. Dixon, 509 U.S.

Clause

protects

against

a

second

prosecution for the same offense after acquittal, against a second
prosecution for the same offense after conviction, and it protects
against multiple punishments for the same offense.

Garrett v.

United States, 471 U.S. 773, 777-78 (1985); Brown v. Ohio, 432 U.S.
161 (1977).

It is the protection against multiple punishments for

the same offense which is at issue in this case.
Although the Blockburger[v. U.S., 284 U.S. 299 (1932)] sameelements test (inquiring whether each offense contains an element
- 18 -

not contained in the other) is a rule of statutory construction
barring subsequent punishment or prosecution if the offenses are
considered to be the same offense, it is not controlling if there
is an apparent indication of contrary legislative intent. Boler v.
State, 678 So.2d 319, 321 (Fla. 1996) (citing Albernaz v. United
States, 450 U.S. 333, 340 (1981)).

Indeed, "legislative intent is

the dispositive question" when addressing a double jeopardy issue.
Id.

(citation omitted).

"[T]he Double Jeopardy Clause does no

more than prevent the sentencing court from prescribing greater
punishment than the legislature intended." Missouri v. Hunter, 459
U.S. 359, 366 (1983).

See Jones v. Thomas, 491 U.S. 376, 381-82

(1989); Ohio v. Johnson, 467 U.S. 493, 499 (1984) ("the sentencing
discretion of courts is confined to the limits established by the
legislature").
The Florida Supreme Court succinctly describes this concept:
The most familiar concept of the term
"double jeopardy" is that the Constitution
prohibits subjecting a person to multiple
prosecutions, convictions, and punishments for
the same criminal offense. The constitutional
protection against double jeopardy is found in
both article I, section 9, of the Florida
Constitution and the Fifth Amendment to the
United States Constitution, which contain
double
jeopardy
clauses.
Despite
this
constitutional
protection,
there
is
no
constitutional prohibition against multiple
punishments for different offenses arising out
of the same criminal transaction as long as
the Legislature intends to authorize separate
punishments. See Hayes v. State, 803 So.2d
695, 699 (Fla. 2001) ("As the United States
Supreme Court explained in Brown v. Ohio, 432
U.S. at 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d
- 19 -

187 (1977), where multiple punishments are
imposed at a single trial, 'the role of the
constitutional
guarantee
against
double
jeopardy is limited to assuring that the court
does not exceed its legislative authorization
by imposing multiple punishments arising from
a single criminal act.'"); Borges v. State,
415 So.2d 1265, 1267 (Fla. 1982) ("The Double
Jeopardy Clause 'presents no substantive
limitation on the legislature's power to
prescribe multiple punishments,' but rather,
'seeks only to prevent courts either from
allowing
multiple
prosecutions
or
from
imposing multiple punishments for a single,
legislatively defined offense.'") (quoting
State v. Hegstrom, 401 So.2d 1343, 1345 (Fla.
1981)). As we recognized in Gordon v. State,
780 So.2d 17 (Fla. 2001):
The
prevailing
standard
for
determining the constitutionality of
multiple convictions for offenses
arising from the same criminal
transaction
is
whether
the
Legislature "intended to authorize
separate punishments for the two
crimes." M.P. v. State, 682 So.2d
79, 81 (Fla. 1996); see State v.
Anderson, 695 So.2d 309, 311 (Fla.
1997) ("Legislative intent is the
polestar that guides our analysis in
double jeopardy issues...."). Absent
a clear statement of legislative
intent
to
authorize
separate
punishments for two crimes, courts
employ the Blockburger test, as
codified in section 775.021, Florida
Statutes
(1997),
to
determine
whether separate offenses exist. See
Gaber v. State, 684 So.2d 189, 192
(Fla.1996) ("[A]bsent an explicit
statement of legislative intent to
authorize separate punishments for
two crimes, application of the
Blockburger
'same-elements' test
pursuant to section 775.021(4) ...
is the sole method of determining
whether multiple punishments are
- 20 -

double-jeopardy
(footnote omitted).

violations.")

Gordon, 780 So.2d at 19–20 (footnote omitted).
Valdes v. State, 3 So.3d 1067, 1069-70 (Fla. 2009) (footnote
omitted).
In making this determination, the question arises as to
whether these charged offenses are found in separate statutory
provisions; whether one offense is an aggravated form of the other;
and whether they are degree variants of the same offense. McKinney
v. State, 66 So.3d 852, 855 (Fla.) (per curiam), cert. denied, 132
S.Ct. 527 (2011).

Upon review, count six (lewd/lascivious conduct

on a child (solicitation)) and count seven (sexual performance by
a child) are found in separate statutory provisions, one offense is
not

an

aggravated

form

of

the

other,

and

that

by

statute,

solicitation is not a degree of sexual performance by a child nor
is sexual performance by a child a degree of solicitation.
The two separate and distinct statutes are 800.04, Fla. Stat.
(count six), and 827.071, Fla. Stat. (count seven).5

Ex. P at 167.

Count six required proof of the victim's age as less than 16 years
and a lewd and lascivious act, and count seven required proof that
the victim's age was less than 18 years and a performance of sexual
conduct.

5

Id.

Chapter 800 of the Florida Statutes addresses Lewdness and
Indecent Exposure, while Chapter 827 concerns Abuse of Children.
- 21 -

Count six of the amended information charged: that "on one or
more occasions between the 1st day of January, 1999, and March 31,
2000, in Suwannee County, Florida, being 18 years of age or older,
[Petitioner] did then and there unlawfully solicit A.S. and/or
A.H., a person under 16 years of age, to commit a lewd or
lascivious act by having A.S. and A.H. rub vaginas, contrary to
Florida Statute 800.04(6)."

Ex. A at 20.

Count seven charged "on

one or more occasions between the 1st day of January 1999, and
March 31, 2000, in Suwannee County, Florida, knowing the character
or content thereof, [Petitioner] did employ, authorize or induce
A.H. or A.S., children less than 18 years of age, to engage in a
sexual performance, to wit: masturbation, contact or union of sex
organs, oral sex and/or fondling of sex organs, contrary to Florida
Statute 827.071."

Ex. A at 20.

The trial court instructed the jury, in pertinent part:
As to
defendant
conduct on
must prove
reasonable

Count VI, before you can find the
guilty of lewd and lascivious
a child by solicitation the State
the following two elements beyond a
doubt:

1.
That [A.H.] was under the age of 16
years; and that the defendant solicited [A.H.]
to commit a lewd or lascivious act.[6]

6

The trial court previously defined lewd and lascivious;
"[t]he words lewd and lascivious mean the same thing, a wicked,
lustful, unchaste, lascivious, licentious intent on the part of the
person doing the act."
Ex. F at 683.
Later on, the court
instructed, "lascivious" means "lustful, normally tending to excite
a desire for sexual satisfaction." Id. at 685.
- 22 -

Again,
encouraged,
induce.

solicitation
means
hired, requested or

command,
tried to

Ex. F at 692.
The court continued:
We go to Count VII. Before you can find
the defendant guilty of sexual performance by
a child the State must prove the following two
elements beyond a reasonable doubt. Here we
are dealing with [A.H.] and [A.S.].
That [A.S.] and [A.H.] were under the age
of 18 years.
The defendant knowing the character and
content thereof did employ, authorize or
induce [A.H.] or [A.S.] to engage in a sexual
performance.
Sexual performance means any performance
or part thereof which includes sexual conduct
by a child less than 18 years of age.
Sexual conduct means actual or simulated
sexual
intercourse,
deviant
sexual
intercourse, sexual bestiality, masturbation,
sadomasochistic abuse, actual lewd exhibition
of the genitals; actual physical contact with
a person's clothed or unclothed genitals,
pubic area, buttocks or if such person is a
female, the breast, with the intent to arouse
or gratify the sexual desire of either party;
or any act or conduct which constitutes sexual
battery or simulates a sexual battery is being
or will be committed. That is the definitions
that are in Count VII.
Ex. F. at 694-95.
In denying this ground of the post conviction motion, the
court explained that count six requires that the victim be under 16
years of age, and count seven requires that the victim be less that
18 years of age.

Ex. P at 169. The court further noted that count
- 23 -

six forbids solicitation of a lewd or lascivious act, while count
seven prohibits employing, authorizing or inducing the child victim
to engage in a sexual performance.
that

the

jury

instructions

Id.

The court also recognized

defined

differently from sexual performance.7

lewd
Id.

or

lascivious

act

Ultimately, the court

concluded that these separate statutes (800.04 and 827.071) forbid
different and distinguishable conduct: lewd or lascivious acts
versus

sexual

performance,

authorizing or inducing.

and

soliciting

Ex. P at 169.

versus

employing,

The court further found

that the conduct charged in both counts was not identical to
"rubbing vaginas."

Id.

Count six referenced having the victims

"rub vaginas,", but count seven referenced "masturbation, contact
or union of sex organs, oral sex and/or fondling of sex organs[.]"
Ex. A at 20.

Thus, the court found that count seven charges

alternative conduct.

Ex. P at 169.

In denying this ground, the circuit court found that counts
six and seven are based on separate statutes and "constitute
different elements by forbidding different sexual conduct, and the
amended information did not charge the same sexual conduct against
the same victims twice[.]"

Id.

circuit

to

7

court's

decision

The appellate court affirmed the
deny

the

claim

of

ineffective

The court defined sexual performance: "any performance or
part thereof which includes sexual conduct by a child less than 18
years of age." Ex. F at 694.
- 24 -

assistance of counsel for failure to raise a double jeopardy claim
and move to dismiss either count six or count seven.
There is a qualifying state court decision and AEDPA deference
is warranted.
decision

The adjudication of the state court resulted in a

that

involved

a

reasonable

application

of

clearly

established federal law, as determined by the United States Supreme
Court.

Therefore, Petitioner is not entitled to relief on ground

four because the state court's decision was not contrary to clearly
established

federal

law,

did

not

involve

an

unreasonable

application of clearly established federal law, and was not based
on an unreasonable determination of the facts.
Upon consideration, Florida intends that separate sentences be
imposed for these violations.

See Stoddard v. Sec'y, Dep't of

Corr., 600 F. App'x 696, 703-704 (11th Cir.) (per curiam) ("In the
context of multiple punishments, the purpose of double jeopardy is
simply to ensur[e] that the total punishment did not exceed that
authorized by the legislature. Therefore, in enforcing the federal
double-jeopardy guarantee, we must examine the various offenses for
which a person is being punished to determine whether, as defined
by the legislature, any two or more of them are the same offense.
In

effect,

we

ask

whether

the

offenses

are

sufficiently

distinguishable to permit the imposition of cumulative punishment."
(footnote, citations and internal quotations omitted)), cert.
denied, 136 S.Ct. 114 (2015).

The offenses charged in counts six

and seven constitute different offenses.
- 25 -

Therefore, there is no

double jeopardy violation.

As such, ground four is due to be

denied.
E.

Ground Five

In ground five, Petitioner raises a claim of ineffective
assistance of counsel for failure to move for a judgment of
acquittal for count three. Petition at 12. He exhausted his state
court remedies by raising this ground in his Second Amended Rule
3.850 motion as ground eight.8
denied this ground.
curiam.

Ex. P at 14-15.

Id. at 170-71.

The circuit court

The 1st DCA affirmed per

Ex. S.

This claim has absolutely no merit.

Based on the record

before the Court, Petitioner's counsel did move for a judgment of
acquittal on all counts, including count three.

Ex. F at 606.

The

circuit court, in denying this ground, found that counsel did not
render a deficient performance by making a broader motion for

8

In his Second Amended Rule 3.850 motion, Petitioner asserted
that defense counsel should have moved for judgment of acquittal on
count three because victim B.B. denied digital penetration of her
vagina. Ex. P at 15. However, the state presented other evidence.
Faye Frazier testified that BB told her Petitioner did put his
finger in her, but there was some question as to whether the
incident occurred in Mississippi, or was the most recent
occurrence, undefined as to location. Ex. E at 402-404, 406-407,
409. Dr. Bethany Mohr, M.D., testified that BB told her Grandpa
Ray touched her "down here where [sic] his finger." Id. at 423.
Jamie Fralick attested that he saw the videotape of BB being
molested by Petitioner, with Petitioner penetrating BB's "private
parts" with his tongue and finger. Id. at 450-51. Finally, Jana
Bogle testified that the incident filmed on the first videotape
occurred in Petitioner's Florida trailer. Ex. F at 559, 563. Ms.
Bogle attested that BB was approximately 2.5 years of age on the
videotape. Id. at 559, 587.
- 26 -

judgment of acquittal than post conviction counsel believed should
have been adopted.

Ex. P at 170-71.

The court stated: "[a]s the

Defendant has not demonstrated the deficient performance prong of
the Strickland standard, it is unnecessary to delve into the other
prong of the Strickland standard for this claim."
(citation omitted).
With

regard

Id. at 171

The 1st DCA affirmed.

to

this

claim

of

ineffective

assistance

of

counsel, AEDPA deference should be given to the state court's
decision. The state court's ruling is well-supported by the record
and

by

controlling

case

law,

Strickland

and

its

progeny.

Petitioner raised the issue in his post conviction motion, the
trial court denied the motion, and the appellate court affirmed.
The Court concludes that the state court's adjudication of this
claim

is

not

contrary

to

or

an

unreasonable

application

of

Strickland, or based on an unreasonable determination of the facts.
Petitioner is not entitled to habeas relief on ground five.
F.

Ground Six

In his sixth and final ground, Petitioner claims he received
the ineffective assistance of counsel due to counsel's failure to
request a limiting instruction at the time Williams Rule evidence
was admitted at trial.

See Ex. E at 519; Ex. F at 583.

Petitioner

raised this issue in ground nine of the Second Amended Rule 3.850
motion.

Ex. P at 15-16.

The circuit court denied this ground,

finding it failed under the Strickland standard.

- 27 -

Id. at 171.

The circuit court recognized that defense counsel did not
request a limiting instruction at the time the videotape containing
Williams Rule evidence of uncharged crimes against victims A.F. and
C.F. (the state's Exhibit No. 10) was admitted, but a Williams Rule
instruction was given to the jury.

Id.

The court concluded that

although it may have been desirable, in hindsight, for counsel to
have requested an instruction earlier in the proceeding, counsel's
performance was not deficient in this regard because the jury was
ultimately properly advised regarding the Williams Rule evidence.
Id. at 172.

Also, the circuit court opined that the result of the

proceeding, even if counsel had requested the limiting instruction
when the evidence was admitted, "likely would not have been
different but for this alleged error, especially when considering
the overwhelming evidence of the Defendant's guilt."9
The 1st DCA affirmed this decision.

Id.

There is a reasonable

basis for the court to deny relief, and this decision must be given
deference. The 1st DCA's decision is not inconsistent with Supreme
Court precedent, and the state court's adjudication of this claim
is not contrary to or an unreasonable application of Strickland, or
based on an unreasonable determination of the facts.

9

The circuit court mentioned that the overwhelming evidence
of the Petitioner's guilt included the homemade videotape depicting
the criminal conduct for which Petitioner was convicted (state's
Exhibit No. 7, published to the jury). Ex. P at 172 n.9, 542, 59597.
- 28 -

The record supports the conclusion that counsel's performance
was not deficient.

Upon receiving notice that the state intended

to offer evidence of other crimes, wrongs, or acts, counsel filed
a Notice of Objection to and Motion for Order Prohibiting "Williams
Rule" Testimony.

Ex. A at 38-39.

The court, however, after

conducting a hearing, held that the Williams Rule testimony would
be allowed.

Ex. C at 213-74; Ex. A at 47.

Defense counsel renewed

his objections during the course of the trial.

Ex. E at 403, 519.

During the charge conference, it was noted that there was a video
in evidence, Williams Rule evidence, that the state decided not to
publish, but was sending back with the jury.

Ex. F at 631.

Some

discussion was made that the instruction should be given after the
close of evidence, but the court noted that the jury had not seen
the videotape at issue. Id. at 632. Defense counsel discussed the
Williams

Rule

instruction

with

the

court.

Id.

Ultimately the court decided to give the instruction.

at

Id. at 635.

As a matter of record, the court instructed the jury:
Now as to the evidence that we talked
about, that was presented and talked about in
closing.
The evidence has been admitted to
show similar crimes, wrongs or acts allegedly
committed by the defendant upon other children
not included in the information that will be
considered by you only as that evidence
relates to proof of motive, opportunity,
intent, preparation, plan, knowledge, identity
or corroborate the testimony of the victims.
Ex. F at 706-707.

- 29 -

632-35.

When

considering

the

claim

of

ineffective

assistance

of

counsel, this Court must try to eliminate the distorting effects of
hindsight, as counseled to do so in Strickland, 466 U.S. at 689.
The record shows defense counsel filed a notice of objection and
moved to prohibit the Williams Rule evidence.
on his motion.

He did not prevail

He did, however, renew his objections during the

course of the trial. Based on the record and the discussion during
the charge conference, the jury did not view the Williams Rule
videotape immediately after it was admitted or during the course of
the trial as the state elected not to publish it, but the court
admitted the tape and sent it back with the jury.10 Defense counsel
requested a Williams Rule instruction, although he did not agree
with the breadth of the instruction.

Nevertheless, the court gave

the broad Williams Rule instruction before the jury retired to
deliberate.
Under these circumstances, counsel's performance was not
deficient.

Even

assuming

arguendo

counsel's

performance

was

deficient, Petitioner has not established prejudice, failing to
meet Strickland's prejudice prong.

Petitioner has failed to show

"that it was 'reasonably likely' that, but for counsel's deficient
performance,

10

the

result

of

the

proceeding

would

have

been

Based on the discussion during the charge conference, the
Court concludes that the tape containing Williams Rule evidence was
not shown to the jury during the presentation of the evidence. Ex.
F at 631. State's Exhibit No. 7, concerning the charged crimes,
was published to the jury. Ex. F at 542, 595-97.
- 30 -

different."

Stoddard, 600 F. App'x at 709 (citation omitted).

such, ground six is due to be denied.

As

Petitioner is not entitled

to habeas relief and the Second Amended Petition is due to be
denied.
Accordingly, it is now
ORDERED AND ADJUDGED:
1.

The Second Amended Petition (Doc. 10) is DENIED, and this

action is DISMISSED WITH PREJUDICE.
2.

The Clerk of the Court shall enter judgment accordingly

and close this case.
3.
Petition,
Because

If Petitioner appeals the denial of his Second Amended
the
this

Court

denies

Court

has

a

certificate

determined

that

of
a

appealability.11
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.

11

This Court should issue a certificate of appealability only
if a petitioner makes "a substantial showing of the denial of a
constitutional right."
28 U.S.C. § 2253(c)(2).
To make this
substantial showing, Petitioner "must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong," Tennard v. Dretke, 542
U.S. 274, 282 (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)).
Upon due consideration, this Court will deny a
certificate of appealability.
- 31 -

DONE AND ORDERED at Jacksonville, Florida, this 23rd day of
February, 2017.

sa 2/7
c:
Harold Ray Boone
Counsel of Record

- 32 -