Permenter v. Secretary, Department of Corrections et al

Filing 22

ORDER denying 1 the 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 10/10/2017. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JAMES PERMENTER,
Petitioner,
v.

Case No. 3:14-cv-1349-J-39MCR

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

INTRODUCTION

Petitioner James Permenter challenges a 2010 Clay County
conviction for three counts of sexual battery (counts 3, 4 & 5),
one count of lewd or lascivious molestation (count 6), and three
counts of solicitation to commit first degree murder (counts 10,
11, & 12).

See Petition (Doc. 1).

Petitioner raises three claims

for habeas relief, the last of which, an ineffective assistance of
trial counsel claim, contains thirteen sub-claims. 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. 14).

In

support of their Response, they submitted Exhibits (Doc. 14).1
Petitioner filed a Reply to Respondents' Response (Reply) (Doc.
See Order (Doc. 6).

18).

II.

CLAIMS OF PETITION

Petitioner raises three grounds in his Petition, the last of
which contains thirteen sub-claims.

The three grounds are:

(1)

the trial court erred in excluding C.C.'s (the child victim) prior
statement under the child hearsay exception in violation of the
Petitioner's due process rights; (2) the trial court committed
fundamental error by allowing the similar fact evidence to become
a feature of the trial; and (3) the ineffective assistance of trial
counsel.

The sub-claims under ground three are: (sub-claim 1)

ineffective assistance of counsel for failure to move to suppress
the

admission

of

the

Williams2

Rule

testimony;

(sub-claim

2)

ineffective assistance of counsel for failure to object to the
state's introduction of collateral crime testimony and alleged

1

The Court hereinafter refers to the exhibits contained in
the Exhibits to Response to Order to Show Cause as "Ex." Where
provided, the page numbers referenced in this opinion are the Bates
stamp numbers at the bottom of each page of the exhibit.
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

Williams v. State, 110 So.2d 654, 663 (Fla.), cert. denied,
361 U.S. 847 (1959).
- 2 -

collateral acts; (sub-claim 3) ineffective assistance of counsel
for misadvising/misleading Petitioner regarding testifying; (subclaim 4) ineffective assistance of counsel for failure to move to
suppress the testimony of government agent Kimberly Schultz; (subclaim 5) ineffective assistance of counsel for failure to move to
sever the sexual battery charges from the solicitation charges;
(sub-claim 6) ineffective assistance of counsel for failure to
present a proper motion for judgment of acquittal; (sub-claim 7)
ineffective

assistance

of

counsel

for

failure

to

pursue

an

entrapment defense to the solicitation to commit murder counts;
(sub-claim 8) ineffective assistance of counsel for failure to
properly

investigate

the

medical

evidence;

(sub-claim

9)

ineffective assistance of counsel for failure to call Sherry Wilson
to testify at trial; (sub-claim 10) ineffective assistance of
counsel for failure to call Dr. Bruce McIntosh to testify at trial;
(sub-claim 11) ineffective assistance of counsel for failure to
object to prosecutorial misconduct during closing arguments; (subclaim 12) ineffective assistance of counsel for failure to call
Brenda Cochran to testify at trial; and (sub-claim 13) ineffective
assistance of counsel based on cumulative errors of counsel.
Respondents urge this Court to deny the Petition. Response at
41. The Court will address Petitioner's three grounds and the subclaims, See Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992),
but no evidentiary proceedings are required in this Court.

- 3 -

III.

STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act (AEDPA)
governs a state prisoner's federal petition for habeas corpus. See
28

U.S.C.

§

2254;

Ledford

v.

Warden,

Ga.

Diagnostic

&

Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert.
denied, 137 S.Ct. 1432 (2017).

"AEDPA limits the scope of federal

habeas review of state court judgments[.]"

Pittman v. Sec'y, Fla.

Dep't of Corr., No. 15-11807, 2017 WL 4216028, at *7 (11th Cir.
Sept. 22, 2017). As such, AEDPA ensures that federal habeas relief
is limited to extreme malfunctions, and not used as a means to
attempt to correct state court errors.

Ledford, 818 F.3d at 642

(quoting Greene v. Fisher, 132 S.Ct. 38, 43 (2011)).
The Eleventh Circuit recently outlined the parameters of
review:
Thus, under AEDPA, a person in custody
pursuant to the judgment of a state court
shall not be granted habeas relief on a claim
"that was adjudicated on the merits in State
court proceedings" 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; or ... was
based on an unreasonable determination of the
facts in light of the evidence presented in
the State court proceeding." 28 U.S.C. §
2254(d). "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." Taylor v. Sec'y, Fla.
Dep't of Corr., 760 F.3d 1284, 1293–94 (11th
Cir. 2014).

- 4 -

As for the "contrary to" clause, "a
federal habeas court may grant the writ 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." Terry Williams v. Taylor, 529 U.S.
362, 412–13, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000). Under the "unreasonable application"
clause, a federal habeas court may "grant the
writ if the state court identifies the correct
governing legal principle from [the Supreme
Court's] decisions but unreasonably applies
that principle to the facts." Id. at 413, 120
S.Ct. 1495. "In other words, a federal court
may grant relief when a state court has
misapplied a 'governing legal principle' to 'a
set of facts different from those of the case
in which the principle was announced.'"
Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct.
2527, 156 L.Ed.2d 471 (2003) (quoting Lockyer
v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166,
155 L.Ed.2d 144 (2003)). And "an 'unreasonable
application of' [Supreme Court] holdings must
be objectively unreasonable, not merely wrong;
even clear error will not suffice." Woods v.
Donald, ––– U.S. ––––, 135 S.Ct. 1372, 1376,
191 L.Ed.2d 464 (2015) (per curiam) (quotation
omitted). To overcome this substantial 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, 103, 131
S.Ct. 770, 178 L.Ed.2d 624 (2011). This is
"meant to be" a difficult standard to meet.
Id. at 102, 131 S.Ct. 770.
Pittman, 2017 WL 4216028, at *7.
There is a presumption of correctness of state court's factual
findings,

unless

the

convincing evidence.

presumption

is

rebutted

28 U.S.C. § 2254(e)(1).
- 5 -

with

clear

and

The standard of

proof is demanding, requiring that a claim be highly probable.
Bishop v. Warden, GDCP, 726 F.3d 1243, 1258 (11th Cir. 2013), cert.
denied, 135 S.Ct. 67 (2014). Also, the trial court's determination
will not be superseded if reasonable minds might disagree about the
factual finding.

Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015).

Also of note, "[t]his 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, 568 U.S. 1233 (2013).
In applying AEDPA deference, the first step is to identify the
last state court decision that evaluated the claim on its merits.
Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1285 (11th
Cir. 2016).3

Once identified, the Court reviews the state court's

decision, "not necessarily its rationale."

Pittman, 2017 WL

4216028, at *8 (quoting Parker v. Sec'y for Dep't of Corr., 331
F.3d 764, 785 (11th Cir. 2003) (citation omitted)).
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

3

As suggested by the Eleventh Circuit in Butts v. GDCP
Warden, 850 F.3d 1201, 1204 (11th Cir. 2017), in order to avoid any
complications if the United States Supreme Court decides to
overturn Eleventh Circuit precedent as pronounced in Wilson v.
Warden, Ga. Diagnostic Prison, 834 F.3d 1227 (11th Cir. 2016) (en
banc), cert. granted, 137 S.Ct. 1203 (2017), this Court, will
employ "the more state-trial-court focused approach in applying §
2254(d)[,]" where applicable.
- 6 -

procedural principles to the contrary." Harrington v. Richter, 562
U.S. 86, 99 (2011); see also Johnson v. Williams, 133 S.Ct. 1088,
1096 (2013). "The presumption may be overcome when there is reason
to think some other explanation for the state court's decision is
more

likely."

Richter,

562

U.S.

at

99-100

(citing

Ylst

v.

Nunnemaker, 501 U.S. 797, 803 (1991)).
Where the last adjudication on the merits is unaccompanied by
an explanation, the petitioner must demonstrate there was no
reasonable basis for the state court to deny relief.
"[A]

habeas

court

must

determine

what

arguments

Id. at 98.
or

theories

supported 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."
Richter, 562 U.S. at 102; Marshall, 828 F.3d at 1285.
Although the § 2254(d) standard is difficult to meet, it was
meant to be difficult.

Indeed, in order to obtain habeas relief,

"a state prisoner must show that the state court's ruling on the
claim being presented . . . was so lacking in justification that
there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement."
U.S. at 103.

- 7 -

Richter, 562

IV.
Respondents

PROCEDURAL HISTORY

provide

a

brief

procedural

history

in

their

Response, Response at 1-3, and Petitioner does not dispute the
accuracy of the history provided by Respondents.
V.

See Reply.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.

Grounds One and Two

In his first ground, Petitioner raises the following claim:
the trial court erred in excluding C.C.'s prior statement under the
child hearsay exception in violation of the Petitioner's due
process rights.

Petition at 5.

Although Petitioner raised this

ground on direct appeal, he did not raise it in the federal
constitutional sense, failing to include a due process claim.
I at i, 36-42.

Ex.

In his appellate brief, Petitioner complained that

the "trial court erred in ruling that section 90.803(23) does not
allow the defense to introduce a child victim's hearsay statement
as substantive evidence."

Ex. I at 39.

Upon review of ground one, this ground certainly involves
statutory interpretation of a state law by state courts.

The writ

of habeas corpus under 28 U.S.C. § 2254 "was not enacted to enforce
State-created rights."

Cabberiza v. Moore, 217 F.3d 1329, 1333

(11th Cir. 2000) (citing Branan v. Booth, 861 F.2d 1507, 1508 (11th
Cir. 1988)), cert. denied, 531 U.S. 1170 (2001).

The Eleventh

Circuit allows that only in cases of federal constitutional error
will a federal writ of habeas corpus be available.

See Jones v.

Goodwin, 982 F.2d 464, 471 (11th Cir. 1993); Krasnow v. Navarro,
- 8 -

909 F.2d 451, 452 (11th Cir. 1990). As such, federal habeas relief
does not lie for errors of state law.

It is not the province of a

this Court to reexamine state-court determinations on issues of
state law.

See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

The Court concludes that ground one presents an issue that is
not cognizable in this habeas proceeding; therefore, this ground
cannot provide a basis for federal habeas corpus relief. Reviewing
ground one, there is no breach of a federal constitution mandate.
Therefore, the claim raised in ground one is due to be denied.
In his second ground, Petitioner contends that the trial court
committed fundamental error by allowing the similar fact evidence
to become a feature of the trial.

Petition at 6.

In their

Response, Respondents assert that ground two does not present a
ground for federal habeas relief as it presents a state law claim,
not a claim of constitutional dimension.

Response at 11, 15-16.

Upon review of the appellate brief, Petitioner raised the
ground on direct appeal, but he did not raise it in the federal
constitutional sense.

Ex. I at i, 43-45.

This ground was

presented on direct appeal as a claim of trial court error based on
an improper trial court ruling, without an underlying due process
claim. Thus, it was presented as an issue of state law; therefore,
the exhausted claim is not cognizable in this federal habeas
proceeding.
The purpose of a federal habeas proceeding is review of the
lawfulness

of

Petitioner's

custody
- 9 -

to

determine

whether

that

custody is in violation of the Constitution or laws or treaties of
the United States.

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

Thus, this Court will not reexamine the state-court determination
on the issue of state evidentiary law. See Estelle v. McGuire, 502
U.S. at 67-68.

Since this ground presents a state law claim

complaining about a ruling by the trial court, Petitioner is not
entitled to federal habeas corpus relief as there has been no
breach of a federal constitutional mandate.
Morever,
Even assuming this ground is exhausted as a
federal claim challenging the state trial
court's admission of collateral evidence, it
does not warrant habeas relief. This ground
alleges
a
claim
of
state
law
error,
specifically a state trial court evidentiary
ruling. "[F]ederal habeas corpus relief does
not lie for errors of state law." Lewis v.
Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092,
111 L.Ed.2d 606 (1990); see Estelle v.
McGuire, 502 U.S. 62, 67–68, 112 S.Ct. 475,
116 L.Ed.2d 385 (1991) (explaining that errors
that
do
not
infringe
on
defendant's
constitutional rights provide no basis for
federal habeas corpus relief).
Dishman v. Jones, No. 4:12cv485-WS, 2015 WL 3952670, at *6 (N.D.
Fla. June 29, 2015) (not reported in F.Supp.3d).
In his Reply, Petitioner urges this Court to find that he was
denied his due process rights and a fair trial based on the trial
court's evidentiary rulings.

Reply at 15, 17-18.

To the extent

Petitioner is now trying to raise due process claims pursuant to
the Fourteenth Amendment of the United States Constitution, the
claims were not exhausted in the state court system.
- 10 -

Therefore,

the due process claims are procedurally barred from federal habeas
review.

Petitioner has not shown cause and prejudice or that a

fundamental miscarriage of justice will result if the court does
not reach these claims on their merits.
Alternatively, to the extent Petitioner broadened his claims
in the Petition to allege due process violations, Petition at 5 &
7,

the

underlying

magnitude.

claims

are

simply

not

of

constitutional

Although Petitioner tries to couch his claim in terms

of due process of law, "[t]his limitation on federal habeas review
is of equal force when a petition, which actually involves state
law issues, is 'couched in terms of equal protection and due
process.'"

Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988)

(quoting Willeford v. Estelle, 538 F.2d 1194, 1198 (5th Cir.
1976)).

Indeed, the federal habeas corpus court will be bound by

the Florida court's interpretation of its own laws unless that
interpretation breaches a federal constitutional mandate. McCoy v.
Newsome, 953 F.2d 1252, 1264 (11th Cir. 1992) (per curiam), cert.
denied, 504 U.S. 944 (1992).

In this case, there is not breach of

a federal constitutional mandate.
Based on the above, Petitioner is not entitled to habeas
relief on grounds one and two of the Petition.

Therefore, grounds

one and two are due to be denied.
B.

Ground Three - Ineffective Assistance of Counsel

In ground three, Petitioner raises his claim of ineffective
assistance of trial counsel.

The Court will review Petitioner's
- 11 -

thirteen sub-claims of ineffective assistance of trial counsel
presented under ground three.
1. Sub-Claim One: ineffective assistance of counsel for failure to
move to suppress the admission of the Williams Rule testimony.
The record shows the following.
of

other

crimes,

wrongs

or

acts

The state filed two notices
evidence,

Ex.

A

at

42-43,

concerning sexual offenses committed upon C.G. and C.T., sisters of
the victim, C.C.4

The record also contains the transcript of the

Williams Rule hearing.

Ex. H at 59-62.

The state provided the

trial judge with transcripts of the depositions.

Id. at 59.

The

prosecutor pointed out that the court previously denied a motion to
sever the sexual abuse charges regarding the three girls.
60.

Id. at

The prosecutor argued that the victim and the Williams Rule

victims are sisters, they are all Petitioner's stepdaughters, and
they share similar types of sexual abuse and circumstances.

Id.

In his explanation, the prosecutor noted that all of the alleged
abuse occurred during visitation with Petitioner or when the girls
were living with Petitioner in a trailer.

Id. at 60-61.

All three

girls alleged that the abuse occurred without other adults being
present to witness the incidents.

Id. at 61.

The prosecutor

argued corroboration, opportunity, lack of mistake, and evidence to
counter any claim of lack of intent.

4

Id.

The three sisters are Petitioner's stepchildren.
- 12 -

Defense counsel stated he was aware of the law, and recognized
that the primary reason for the state presenting the testimony was
corroboration.

Id.

Counsel mentioned that it was a familial

setting, as Petitioner was married to the girls' mother and the
girls were Petitioner's stepdaughters.

Id.

Defense counsel did

point out the distinctions in the allegations.

Id. at 62.

He said

the alleged incidents were quite a bit different, noting digital
penetration fully clothed versus an allegation of full penile
vaginal

intercourse

penetration.

Id.

and

oral

intercourse,

without

digital

Relying on these purported differences in the

types of abuse, he argued that it would be unfairly prejudicial to
allow the Williams Rule witnesses to testify as to the other
crimes, wrongs or acts.
hearing,

the

admissible.
In

trial

Id.

court

After completing the Williams Rule
found

the

Williams

Rule

testimony

Id.

his

first

sub-claim,

Petitioner

claims

ineffective

assistance of counsel for failure to move to suppress the Williams
Rule testimony.

Petition at 9.

Petitioner exhausted this ground

by raising it in ground one of his Rule 3.850 motion.
112-17.

Ex. O at

The trial court denied relief, id. at 172-74, and the

First District Court of Appeal (1st DCA) per curiam affirmed.

Ex.

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

the

multiple

claims

of

- 13 -

ineffective

assistance

of

counsel. Ex. O at 170-71. In this particular claim of ineffective
assistance of counsel, Petitioner asserts that although he received
the Williams Rule hearing, he did not receive the benefit of a full
and fair suppression hearing.

Id. at 113.

He complains that the

court's review of the issue was limited, and the limited review
negated the court's gate-keeping function.

Id.

In denying this ground, the post-conviction court found that
Petitioner failed to meet the prejudice prong of the Strickland.
Ex. O at 173.
the

testimony

The court determined there was no prejudice because
of

the

Williams

Rule

witnesses

"was

not

only

relevant, but the probative value was not substantially outweighed
by its potential for unfair prejudice."

Id.

The court further

found that even if counsel had moved to suppress the statement or
filed a motion in limine, the Petitioner "cannot demonstrate a
reasonable probability that the evidence would have been excluded
as the preliminary deposition testimony was sufficient for this
Court to find by clear and convincing evidence that the collateral
crimes occurred."

Id.

The court went on to find with regard to

Petitioner's claim asserting counsel's failure to challenge the
state's argument as to relevancy of the testimony concerning
opportunity, lack of mistake or lack of intent, that nevertheless,
the evidence would have been admissible as similar fact evidence
properly used to corroborate the testimony of the victim.

Id.

Finally, the post-conviction court opined, "even assuming
arguendo that trial counsel performed deficiently, Defendant cannot
- 14 -

establish prejudice as there is not a reasonable probability that
the result of the proceeding would have been different (i.e. the
Williams Rule evidence would have been found inadmissible)."
at 173-74.

Id.

With that conclusion, the court denied ground one of

the Rule 3.850 motion.

The 1st DCA affirmed per curiam.

Ex. S.

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.

Petitioner

has failed to show that the state court's ruling on the claim
raised in sub-claim one was so lacking in justification that there
was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.
decision

is

including

not

inconsistent

Stickland

and

its

with

Supreme

progeny.

The 1st DCA's

Court

The

precedent,

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

Thus, sub-claim one is due to be

denied.
- 15 -

2. Sub-claim Two: ineffective assistance of counsel for failure to
object to the state's introduction of collateral crime testimony
and alleged collateral acts.
In sub-claim two, Petitioner contends that his counsel was
ineffective for failure to object to the state's introduction of
collateral crime testimony not charged in the information nor
noticed prior to trial.

Petition at 10.

In particular, he points

to testimony regarding the forced masturbation of his penis by the
child victims.

Id.

He contends this was inadmissible collateral

crime evidence which became a feature of the trial.
Petitioner exhausted this ground by raising it in ground two
of his Rule 3.850 motion.

Ex. O at 117-20.

The trial court denied

relief, id. at 174-75, and the 1st DCA affirmed per curiam.

Ex. S.

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.
made

the

finding

that

that

"the

Ex. O at 170-71.
other

acts

which

The court
Defendant

complains were improperly admitted were inextricably related to
Defendant's alleged course of conduct with C.C. and so formed a
background necessary to give a complete picture of the alleged.
crime."

Id. at 175.

The court specifically noted that the acts of

forced masturbation were inextricably intertwined with the alleged
sexual battery, particularly Defendant's placing his penis in the
- 16 -

mouth of the child victim.

Id.

With regard to this claim in

particular, the court concluded that Petitioner failed to establish
counsel's failure to object constituted deficient performance. Id.
In doing so, the court opined that because the acts of forced
masturbation did not become a feature of the trial, there was no
prejudice.

Id.

Again, the post conviction court applied the two-pronged
Strickland standard.

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, sub-claim two is due to

be denied.
3.

Sub-claim

Three:

ineffective

assistance

of

counsel

misadvising/misleading Petitioner regarding testifying.
- 17 -

for

The third ground presents a claim of ineffective assistance of
counsel for misadvising/misleading Petitioner regarding testifying.
Petition at 10.

Petitioner exhausted this ground by raising it in

ground 3(A) of his Rule 3.850 motion.

Ex. O at 125-27.

The trial

court denied relief, id. at 180-81, and the 1st DCA affirmed the
circuit court's decision.

Ex. S.

The record shows the following.

Before opening statements,

the trial judge instructed the jury:
In every criminal proceeding a defendant
has the absolute right to remain silent. At
no time is it the duty of a defendant to prove
his innocence.
From the exercise of a
defendant's right to remain silent a jury is
not permitted to draw any inference of guilt,
and the fact that a defendant did not take the
witness stand must not influence your verdict
in any manner whatsoever.
Ex. D at 117.
After the state rested, trial counsel advised the court that
the defense would call two witnesses, the Petitioner's sons.

Ex.

F at 498-99.

Upon inquiry, counsel told the court that Petitioner

declined

testify.

to

Id.

at

499.

The

following

transpired:
THE COURT: All right. Step up here if
you would, Mr. Permenter. I want to talk to
you for a few minutes.
You've heard your
attorney just represented to the Court that
your two sons are going to testify on your
behalf, correct?
THE DEFENDANT: Yes, sir.
THE COURT: And that you're not going to
testify, is that correct?
- 18 -

colloquy

THE DEFENDANT: That's correct.
THE COURT: You understand you have a
right to testify if you want to?
THE DEFENDANT: Yes, sir.
THE COURT: Of course if you do elect to
testify then you're treated like all the other
witnesses that have been treated in this
courtroom and the defense would get –- the
prosecution would get an opportunity to cross
examine
you
after
you
completed
your
testimony, but obviously if you don't testify
then they won't have an opportunity to ask you
any questions.
Now are you satisfied with
that decision?
THE DEFENDANT: Yes, sir.
THE COURT: You discussed that with your
two attorneys here?
THE DEFENDANT: Yes, sir.
THE COURT: Mr. Bedell and Mr. Wright?
THE DEFENDANT: Yes, sir.
THE COURT: So you're satisfied that the
only thing that ought to be presented on your
behalf is the testimony from your two sons, is
that correct?
THE DEFENDANT: Yes, sir.
THE COURT: All right.

Thank you.

Id. at 499-500.
In its final instructions to the jury, the court explained:
The defendant exercised a fundamental
right by choosing not to be a witness in this
case. You must not view this as an admission
of guilt or be influenced in any way by his
decision. No juror should ever be concerned
that the defendant did or did not take the
witness stand to give testimony in the case.
- 19 -

Id. at 605.
The trial court addressed this claim and noted two important
questions when a defendant claims he would have testified: (1) did
the defendant voluntarily agree with counsel not to take the stand,
and (2) even if the advice is voluntarily followed, was counsel's
advise

deficient

because

no

reasonable

discouraged defendant's testimony.

attorney

would

Ex. O at 180.

have

Petitioner

advised the court that he voluntarily agreed with counsel not to
take the stand.

Ex. F at 499-500.

The record shows the trial

court "obtained a knowing, voluntary, and intelligent waiver from
Defendant of his right to testify."

Ex. O at 180.

Petitioner alleged that counsel's performance was deficient
because Petitioner was prevented from telling his side of the
story. Id. at 181. For example, Petitioner wanted to explain that
the alleged "boner" was his belt buckle.

Id.

Additionally, he

wanted to tell the jury, with regard to the charges of solicitation
to commit a capital felony, that his ex-wife could not kill a bug,
that he was merely venting frustration in conversations with his
ex-wife, and that Petitioner was well aware that Tommy, his exwife's cousin, was incapable of carrying out a murder.

With

Id.

regard to the second question related above, the post conviction
court found that Petitioner "cannot demonstrate that no reasonable
attorney would have discouraged him from testifying."

Id.

circuit court denied this claim, and the 1st DCA affirmed.

- 20 -

The

Ex. S.

If there is any reasonable basis for the court to deny relief,
the denial must be given deference.

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 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 sub-claim three.
4. Sub-claim Four: ineffective assistance of counsel for failure to
move

to

suppress

the

testimony

of

government

agent

Kimberly

Schultz.
In his fourth ground, Petitioner raises a claim of ineffective
assistance of counsel for failure to move to suppress the testimony
of

his

recorded

ex-wife,
jailhouse

Petition at 11.

Kimberly

Schultz,

conversations

regarding

between

her

surreptitiously
and

Petitioner.

Petitioner exhausted this claim by raising it in

his Rule 3.850 motion in ground four.

Ex. O at 127-130.

The

circuit court denied this claim of ineffective assistance of
counsel.

Id. at 181-83.

The 1st DCA affirmed.

Ex. S.

In this ground, Petitioner complains that his defense counsel
failed to move to suppress the recorded jail conversations between
- 21 -

Petitioner and his ex-wife, Kimberly Schultz. Petition at 11. Ms.
Schultz

contacted

the

State

Attorney's

Office

and

told

them

Petitioner was trying to use her to have the witnesses in the
sexual abuse case killed.

Detectives arranged for Ms. Schultz to

meet with Petitioner in the visitation booth at the jail, and the
conversations were recorded.

During the conversations, Petitioner

requested that Ms. Schultz get someone or her cousin Tommy to take
out the witnesses.
Petitioner claims the government created a situation to induce
Petitioner to make incriminating statements to Ms. Schultz, acting
as a government agent.

He contends that counsel should have moved

to suppress the statements because they were elicited in violation
of his Sixth Amendment right to counsel, as Petitioner had counsel
while confined in the jail.
The circuit court rejected this claim, noting the Sixth
Amendment right is "offense-specific" and cannot be invoked for all
future prosecutions.

Ex. O at 182.

Thus, the Sixth Amendment

right attached to the sexual battery and molestation offenses, not
to future prosecutions, like the solicitation charges.

The court

noted that Ms. Schultz did not attempt to elicit, nor did she
receive,

any

information

molestation offenses.

regarding

Id. at 183.

the

sexual

battery

and

The court found no Sixth

Amendment right had been invoked with regard to the solicitation to
commit murder criminal activity.

Id.

The court found Ms. Schultz

was not acting as an agent of the state, noting that Petitioner
- 22 -

approached her with respect to taking out witnesses, Ms. Schultz
independently went to the State Attorney's Office and reported the
attempted solicitation, and Ms. Schultz was not promised, nor did
she receive any benefits in exchange for eliciting information from
Petitioner concerning the solicitation to commit murder.
court

held

that

Petitioner

failed

to

demonstrate

Id.

The

deficient

performance on the part of his counsel for failure to move to
suppress the recorded jailhouse conversations.
affirmed.

Id.

The 1st DCA

Ex. S.

The court employed the Strickland standard and found no
deficient performance.

Thus, the court determined the first prong

of the Strickland standard had not been met.

If there is any

reasonable basis for the court to deny relief, the denial must be
given deference.
In this instance, there is a qualifying state court decision
and AEDPA deference is warranted.

The adjudication of the state

court resulted in a decision that involved a reasonable application
of clearly established federal law, as determined by the United
States Supreme Court.

Therefore, Petitioner is not entitled to

habeas relief on sub-claim 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.

- 23 -

5. Sub-claim Five: ineffective assistance of counsel for failure to
move to sever the sexual battery charges from the solicitation
charges.
In ground five, Petitioner raises a claim of ineffective
assistance of counsel for failure to move to sever the sexual
battery charges from the solicitation charges. Petition at 12. He
exhausted his state court remedies by raising this ground in his
Rule 3.850 motion as ground 4(A).
court denied this ground.
curiam.

Ex. O at 130-33.

Id. at 183-85.

The circuit

The 1st DCA affirmed per

Ex. S.

The circuit court reviewed this claim and found that "the
sexual battery charges and the solicitation charges were connected
in the episodic sense."

Ex. O at 184.

Indeed, the plot to kill

the witnesses came about as a result of the sexual battery and
molestation charges.

Id.

More importantly, the court found that

even if the solicitation counts had been severed from the sexual
battery counts, "evidence of the sexual battery would have been
admissible in the trial on the solicitation charges[,]" and vice
versa.

Id.

Failure

to

move

for

severance

under

these

circumstances was not deficient performance, and the court found
that counsel did not perform deficiently by failing to move to
sever the charges.

Id. at 185.

did not suffer any prejudice.

Also, the court found Petitioner
Id.

- 24 -

As noted previously, the

circuit court employed the two-pronged Strickland standard.
1st DCA affirmed per curiam.

The

Ex. S.

Based on the above, the 1st DCA's ruling is well-supported by
the record and by controlling case law, Strickland and its progeny.
Again, it is Petitioner's burden to show there was no reasonable
basis

for

the

state

court

to

deny

relief,

and

he

has

not

accomplished that task.
With

regard

to

this

claim

of

ineffective

assistance

of

counsel, AEDPA deference should be given to the state court's
decision.

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 sub-claim five.
6. Sub-claim Six: ineffective assistance of counsel for failure to
raise a proper motion for judgment of acquittal.
In

sub-claim

six,

Petitioner

claims

he

received

the

ineffective assistance of counsel due to counsel's failure to raise
a proper motion for judgment of acquittal.

Petition at 12.

Petitioner raised this issue in ground 4(B) of the Rule 3.850
motion.

Ex. O at 133-36.

Id. at 185-86.

The circuit court denied this ground.

The 1st DCA affirmed.

Ex. S.

The record reflects that defense counsel moved for a judgment
of acquittal, asserting that the state did not provide a prima
- 25 -

facie case.

Ex. F at 498.

The court denied the motion.

Id.

Defense counsel renewed the motion for judgment of acquittal, and
the court denied the renewed motion.

Id. at 520.

As recognized by

the circuit court, the denial of the motion for judgment of
acquittal was revisited and argued in the motion for new trial and
subsequently reviewed on direct appeal.

Ex. O at 185-86; Ex. A at

166-68; Ex. B at 210–11.
Thus, based on the record, counsel did move for a judgment of
acquittal on all counts, and the circuit court denied the motion
and the renewed motion. The circuit court, in denying Petitioner's
claim of ineffective assistance of counsel, found that counsel did
not render a deficient performance by failing to make a broader
motion in the manner asserted by Defendant.

Ex. O at 186.

The

court opined, even assuming defense counsel had made such a motion
in the manner suggested by Petitioner, "the Court does not find
there

is

a

reasonable

probability

that

proceedings would have been different."

the

outcome

of

the

Id.

The 1st DCA affirmed this decision.

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.

- 26 -

7. Sub-claim Seven: ineffective assistance of counsel for failure
to pursue an entrapment defense to the solicitation to commit
murder counts.
Petitioner raises a claim of ineffective assistance of counsel
for failure to pursue the entrapment defense.

Petition at 13.

He

exhausted his claim of ineffective assistance of counsel for
failure to pursue an entrapment defense in ground 4(C) of his Rule
3.850 motion.

Ex. O at 136-41.

The circuit court denied this

ground, id. at 186-87, and the 1st DCA affirmed.

Ex. S.

The trial court concluded, after considering Petitioner's
proposed testimony that he was merely venting frustration in the
jailhouse conversations and knew that his ex-wife could not kill a
bug and her cousin Tommy was incapable of carrying out the murders,
that Petitioner's defense was not entrapment.

Ex. O at 186.

The

court opined that in order to present an entrapment defense,
Petitioner would have to admit that he committed the crime of
solicitation to commit murder, but did so only because of the
actions of law enforcement.

Id.

The court, upon reviewing

Petitioner's assertions, found that Petitioner maintained that he
never intended to have the witnesses killed.

Id. at 187.

In

conclusion, the court found that counsel's performance was not
deficient in this regard, because the entrapment defense was not
suitable based on Petitioner's proposed testimony.

- 27 -

Id.

Of importance, the 1st DCA affirmed the decision of the
circuit court, and this Court will presume that the state court
adjudicated this claim on its merits based on the absence of any
indication of state-law procedural principles to the contrary.
Since the 1st DCA's 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.

In this

instance, Petitioner has failed to show there was no reasonable
basis for the state court to deny relief.
must

be

given

deference.

The

1st

Therefore, the denial

DCA's

decision

is

not

inconsistent with Supreme Court precedent, including Strickland and
its progeny.

The 1st DCA's adjudication of this claim is not

contrary to or an unreasonable application of Strickland, or based
on an unreasonable determination of the facts.

Therefore, sub-

claim seven is due to be denied.
8. Sub-claim Eight: ineffective assistance of counsel for failure
to properly investigate the medical evidence.
Petitioner asserts that he received the ineffective assistance
of counsel due to his counsel's failure to properly investigate the
medical evidence.

Petition at 14.

He raised the claim in his

state post-conviction motion as claim 5(A).

Ex. O at 143-47.

The

circuit court found neither deficient performance nor prejudice
under Strickland's two-pronged test.

Id. at 188-90.

The record shows that Lisa Muth of the CPT testified at trial.
Ex. D at 278. She is an advanced registered nurse practitioner and
- 28 -

certified as a family nurse practitioner.

Id. at 279.

She

testified that there is a very low likelihood of gathering forensic
evidence more than 72 hours after the event.

Id. at 281.

Upon her

external examination, she found no injury to the victim's vagina.
Id. 284.
quickly.

She explained that the vaginal area of the body heals
Ex. E at 289.

without injury.

She found the victim's hymen to be normal,

Id. at 290.

She testified that her conclusion

from the sexual abuse examination was that "the physical findings
were consistent with her [C.C.'s] history and the exam results
neither confirm nor negate the allegations of sexual abuse."
at 292.

Id.

On cross, Ms. Muth confirmed that upon her examination,

there was nothing physically that she noticed that would be
considered to be evidence of sexual assault.

Id. at 297.

Petitioner complains that his defense counsel should have
objected to Ms. Muth's conclusion that the physical findings were
consistent with C.C.'s history.

The circuit court found the lack

of an objection was not erroneous under Strickland as Ms. Muth
concluded that the examination neither confirmed nor negated the
allegations of sexual assault.

Ex. O at 189.

With regard to

Petitioner's assertion that his counsel should have moved to
suppress or exclude the expert testimony as irrelevant or overly
prejudicial, the court found that Ms. Muth was a qualified expert
in the field of sexual abuse examination, and as such, she could
express an opinion as to whether a child has been the victim of
sexual

abuse.

Id.

The

court
- 29 -

also

found

the

testimony

straightforward and neither irrelevant nor overly prejudicial, and
if a motion to exclude or suppress the testimony had been filed, it
would have been denied.

Id.

Petitioner also claimed his counsel was deficient for failure
to hire an expert to evaluate the medical evidence.

Id.

Here, the

only evidence presented was that there was no physical evidence of
sexual abuse. Id. Petitioner suggests that a defense expert could
have

challenged

the

testimony

concerning

properties of the hymen without scarring.

the

Id.

quick-healing

The court found

"that even if counsel was deficient for failing to hire an expert,
given the other evidence against Defendant in this case, there is
no reasonable probability that the outcome of the proceedings would
have been different."

Id.

Finding no deficient performance, or

even assuming deficient performance, finding no prejudice, the
court denied the claim.

Id. at 189-90.

The 1st DCA affirmed.

Ex.

S.
Based on the above, there is a reasonable basis for the state
court

to

deny

deference.

relief;

therefore,

the

denial

must

be

given

Thus, deference under AEDPA will be given to the last

adjudication on the merits provided by the 1st DCA.

Given due

consideration, its decision is not inconsistent with Supreme Court
precedent, including Strickland and its progeny. The state court's
adjudication of the claim is not contrary to or an unreasonable
application

of

Strickland,

or

- 30 -

based

on

an

unreasonable

determination of the facts.

Consequently, sub-claim eight is

denied.
9.

Sub-claim Nine: ineffective assistance of counsel for failure

to call Sherry Wilson to testify at trial.
Petitioner, in sub-claim nine, asserts that his counsel was
ineffective for his failure to call Sherry Wilson to testify during
the trial.

Petition at 14.

Petitioner claims Ms. Wilson should

have testified as an expert who would have explained "the ability
of a six year old likelihood to deceive someone else."

Id.

Petitioner raised this claim in ground six of his Rule 3.850
motion.

Ex. O at 151-53.

He stated "Sherry Wilson was an expert

forensic interviewer, and would have been permitted to render here
[sic] expert opinion on the demeanor of the witness during the
interview."

Id. at 152.

Petitioner exhausted this claim by

appealing the denial of his Rule 3.850 motion.
affirmed.

The 1st DCA

Ex. S.

Of note, Sherry Wilson conducted the 2004 CPT interview of the
victim in which the victim denied any sexual abuse.

Defense

counsel filed a Notice of Child Hearsay, Ex. A at 46, seeking to
introduce the hearsay testimony of the victim's statement made on
November 23, 2004 to Sheri [sic] Wilson.
Pre-trial, defense counsel moved to enter the 2004 CPT video
for the jury's consideration, but the court determined that cross
examination of the victim would sufficiently demonstrate that she
made

prior

inconsistent

statements
- 31 -

during

her

previous

CPT

interview.

Ex. O at 191.

Petitioner counters that Ms. Wilson

should have been called to convey the demeanor of the witness
during her prior inconsistent statements, discrediting the state's
portrait

of

the

denials

as

being

made

based

on

fear

and

intimidation.

Id.

The circuit court said this would serve no

other

than

impeachment.

purpose

Id.

at

191-92.

The

court

considered Petitioner's contention, but found that "[l]ogically,
... if the Court denied use of the video to show demeanor, it would
extend that to witness testimony on the same subject." Id. at 192.
Looking to the court's prior rulings on the subject of attempting
to show the witness's demeanor, the circuit court found counsel was
not ineffective for failing to call Ms. Wilson as a witness.
Defense counsel was not ineffective for failure to call Ms.
Wilson.

Under these circumstances, defense counsel's performance

cannot be deemed deficient.

On this record, Petitioner has failed

to carry his burden of showing that his counsel's representation
fell outside that range of reasonably professional assistance for
failure to call Ms. Wilson to testify.

Petitioner has not shown

that a reasonable probability exists that the outcome of the
proceeding would have been different if his lawyer had attempted to
call Ms. Wilson for the purpose of showing the child victim's
demeanor

during

the

2004

CPT

interview,

as

the

trial

court

previously disallowed the admittance of the 2004 video.
The Court presumes the 1st DCA adjudicated the claim on its
merits.

Petitioner has not met his burden to show there was no
- 32 -

reasonable basis for the state court to deny relief.

Since there

is a reasonable basis for the state court to deny relief, the
denial must be given deference.

The 1st DCA's decision is not

inconsistent with Supreme Court precedent. Its adjudication of the
claim

is

not

contrary

to

or

an

unreasonable

application

of

Strickland, or based on an unreasonable determination of the facts.
In sum, sub-claim nine is due to be denied.
10.

Sub-claim Ten: ineffective assistance of counsel for failure

to call Dr. Bruce McIntosh to testify at trial.
In this ground, Petitioner claims his counsel was ineffective
for failure to call Dr. Bruce McIntosh to testify that there was no
physical evidence of sexual abuse and that the intact hymen was not
dispositive of sexual abuse.

Petition at 15.

Petitioner contends

Dr. McIntosh's testimony would not be considered to be repetitious.
Id.
Petitioner exhausted this claim by raising it in ground 6(A)
of his Rule 3.850 motion and appealing its denial.
55.

The 1st DCA affirmed.

Ex. O at 153-

Ex. S.

Respondents counter Petitioner's argument, stating that Dr.
McIntosh's testimony would have been cumulative of Ms. Muth's
testimony, as she testified there was no physical evidence of
sexual abuse and that an intact hymen is not dispositive of whether
a child has been sexually abused.

Response at 37.

Respondents

contend that Petitioner cannot show prejudice as there is no

- 33 -

reasonable probability that, but for counsel's alleged error, the
result of the proceeding would have been different.

Id.

In its denial of the Rule 3.850 motion, the circuit court
considered this claim and concluded that "there is no reasonable
probability that the outcome of the proceedings would have been
different if Dr. McIntosh had testified about his examination of
C.T. (giving essentially the same testimony Ms. Muth gave about the
victim)."

Ex. O at 192.

The court also referred to its conclusion

under ground 5(A), that "given the other evidence against Defendant
in this case, there is no reasonable probability that the outcome
of the proceedings would have been different" if counsel had called
Dr. McIntosh.

Id. at 189.

Strickland standard.

Again the court referenced the

Id. at 190.

Failure to introduce repetitive and cumulative evidence to
that which was produced at trial would not constitute deficient
performance under Strickland.

Thus, "counsel's failure to present

cumulative evidence is not ineffective assistance."

Reaves v.

Sec'y, Fla. Dep't of Corr., No. 15-11225, 2017 WL 4318594, at *15
(11th Cir. Sept. 28, 2017) (citation omitted).
The Court presumes that the 1st DCA's per curiam affirmance
was on the merits.
denying relief.

There is a reasonable basis for the decision

As such, the Court applies AEDPA deference in

reviewing this claim.

The state court's conclusion was neither

contrary to nor an unreasonable application of Stickland, and it

- 34 -

did not result from an unreasonable determination of the facts.
Sub-claim ten is due to be denied.
11. Sub-claim Eleven: ineffective assistance of counsel for failure
to object to prosecutorial misconduct during closing arguments.
In sub-claim eleven, Petitioner contends that his counsel's
performance

was

ineffective

for

failure

to

object

prosecutor's misconduct during closing arguments.
Petitioner

references

the

following

remarks

to

the

Petition at 15.

made

during

the

prosecutor's closing argument: that C.C. and her sisters had no
reason to lie, and the jury should hold Petitioner accountable for
his actions, with the prosecutor gesturing at Petitioner with
pointed finger.
Generally,

Id.
Petitioner

complains

about

the

"vouching

and

impermissible comments by the prosecutor" during closing arguments
without objection from defense counsel.

Ex. O at 163.

Petitioner

raised this claim in ground nine of his Rule 3.850 motion.
160-63.
affirmed.

The circuit court denied this claim.
Ex. S.

Id. at

The 1st DCA

Therefore, the claim was exhausted in the state

court system.
To the extent Petitioner is claiming prosecutorial misconduct
during closing argument, attorneys are permitted wide latitude in
their closing arguments.

However, attorneys should not make

"[i]mproper suggestions, insinuations, or assertions" that are
intended to mislead the jury or appeal to passions or prejudices

- 35 -

during closing arguments; U.S. v. Hope, 608 F. App'x 831, 840 (11th
Cir. 2015) (per curiam), but the prosecutor is entitled to offer
the jury his view of the evidence presented.

In doing so, the

prosecutor has wide latitude in asking the jury to draw all logical
inferences from the evidence presented.
As previously noted, the circuit court identified the correct
legal standard, referencing Strickland. Attorneys are allowed wide
latitude during closing argument as they review the evidence and
explicate inferences which may reasonably be drawn from it.

Also

of import, failure to object during closing argument rarely amounts
to ineffective assistance of counsel, particularly if the errors,
if any, are insubstantial.
In order to establish a substantial error by counsel for
failure to object to prosecutorial misconduct, the prosecutor's
"comments must either deprive the defendant of a fair and impartial
trial, materially contribute to the conviction, be so harmful or
fundamentally

tainted

as

to

require

a

new

trial,

or

be

so

inflammatory that they might have influenced the jury to reach a
more severe verdict than it would have otherwise." Walls v. State,
926 So.2d 1156, 1167 (Fla. 2006) (per curiam) (citation omitted).
Also, there must be a showing that there was no tactical reason for
failure to object.

Id.

Without a showing of the above, a

petitioner fails to demonstrate the requisite prejudice.
In denying this claim, the circuit court held:

- 36 -

Id.

After
reviewing
the
entire
record
and
considering the totality of the testimony and
evidence presented at trial, including: the
testimony of the victim; the testimony of the
victim[']s sisters; the testimony of the CPT
nurse [Lisa Muth]; the testimony of Kimberly
Schultz; and the recordings of Ms. Shulz's
[sic] conversations with Defendant about
killing the victim, her sisters, and their
mother, the Court finds there was overwhelming
evidence
against
Defendant,
therefore
Defendant cannot show he was prejudiced by
counsel's failure to object to the State's
alleged comments.
Lingebach v. State, 990
So.2d 1213 (Fla. 1st DCA 2008) (finding that
overwhelming evidence of guilt overcomes an
assertion of error that could have contributed
to the verdict). Ground 9 is denied.
Ex. O at 195 (citations to record omitted).
In

sum,

the

circuit

court

rejected

this

claim

because

Petitioner failed to demonstrate prejudice, failing to meet a
requirement of Strickland.

The 1st DCA affirmed without a written

decision. The Court will presume the 1st DCA adjudicated the claim
on its merits under these circumstances as there is an absence of
any indication or state-law procedural principles to the contrary.
Petitioner has failed to meet his burden to show that there was no
reasonable basis for the state court to deny relief.
Upon review, there is a reasonable basis for the court to deny
relief; therefore, the denial must be given deference.

Thus,

deference under AEDPA should be given to the last adjudication on
the merits provided by the 1st DCA.
decision
including

is

not

inconsistent

Stickland

and

its

Given due consideration, its

with

Supreme

progeny.

- 37 -

Court

The

precedent,

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. As such, sub-claim eleven is due to be
denied.
12.

Sub-claim Twelve: ineffective assistance of counsel for

failure to call Brenda Cochran to testify at trial.
In this ground, Petitioner claims that his attorney was
ineffective for failure to call Brenda Cochran, a person having
custody of the children, including the victim.

Petition at 16.

Petitioner alleges that Ms. Cochran would have testified that the
children acted normally upon their return from visiting their
mother, and nothing out of the ordinary was observed, including any
physical or emotional distress of the victim.

Id.

Of note,

Petitioner states that defense counsel spoke with Brenda Cochran,
and

she

told

counsel

that

"she

had

custody

of

the

children

including the victim and that when the children went to visit their
mother, upon their return, they would act just like any other child
whom had a good time."
Respondents

Id.

assert

procedurally defaulted.

that

this

claim

Response at 39.

is

unexhausted

and

They contend that

Petitioner has not demonstrated cause and prejudice, nor has he
shown that a fundamental miscarriage of justice will result if the
claim is not addressed on its. merits.

- 38 -

Id.

In addressing the question of exhaustion, this Court must ask
whether Petitioner's claim was fairly raised in the state court
proceedings:
Before seeking § 2254 habeas relief in
federal court, a petitioner must exhaust all
state court remedies available for challenging
his conviction. See 28 U.S.C. § 2254(b), (c).
For a federal claim to be exhausted, the
petitioner must have "fairly presented [it] to
the state courts." McNair v. Campbell, 416
F.3d 1291, 1302 (11th Cir. 2005). The Supreme
Court has suggested that a litigant could do
so by including in his claim before the state
appellate court "the federal source of law on
which he relies or a case deciding such a
claim on federal grounds, or by simply
labeling the claim 'federal.'" Baldwin v.
Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 158
L.Ed.2d 64 (2004). The Court's guidance in
Baldwin "must be applied with common sense and
in light of the purpose underlying the
exhaustion requirement"—namely, giving the
state courts "a meaningful opportunity" to
address the federal claim. McNair, 416 F.3d at
1302. Thus, a petitioner could not satisfy the
exhaustion requirement merely by presenting
the state court with "all the facts necessary
to support the claim," or by making a
"somewhat similar state-law claim." Kelley,
377 F.3d at 1343–44. Rather, he must make his
claims in a manner that provides the state
courts
with
"the
opportunity
to
apply
controlling legal principles to the facts
bearing upon (his) [federal] constitutional
claim." Id. at 1344 (quotation omitted).
Lucas v. Sec'y, Dep't of Corr., 682 F.3d 1342, 1351-52 (11th Cir.
2012), cert. denied, 133 S.Ct. 875 (2013).
The doctrine of procedural default requires the following:
Federal habeas courts reviewing the
constitutionality of a state prisoner's
conviction and sentence are guided by rules
- 39 -

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, supra, at 747–748, 111 S.Ct.
2546; Sykes, 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
default and prejudice from a violation of
federal law. See Coleman, 501 U.S., at 750,
111 S.Ct. 2546.
Martinez v. Ryan, 566 U.S. 1, 9-10 (2012).
In Martinez, the Supreme Court expanded the "cause" that may
excuse a procedural default.

Id. at 9.

The Supreme Court

explained:
Allowing a federal habeas court to hear a
claim of ineffective assistance of trial
counsel when an attorney's errors (or the
absence of an attorney) caused a procedural
default in an initial-review collateral
proceeding acknowledges, as an equitable
matter, that the initial-review collateral
proceeding, if undertaken without counsel or
with ineffective counsel, may not have been
- 40 -

sufficient to ensure that proper consideration
was given to a substantial claim. From this it
follows that, when a State requires a prisoner
to raise an [ineffective assistance of trial
counsel] claim in a collateral proceeding, a
prisoner may establish cause for a default of
an
ineffective-assistance
claim
in
two
circumstances. The first is where the state
courts did not appoint counsel in the
initial-review collateral proceeding for a
claim of ineffective assistance at trial. The
second is where appointed counsel in the
initial-review collateral proceeding, where
the claim should have been raised, was
ineffective under the standards of Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). 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. Cf.
Miller–El v. Cockrell, 537 U.S. 322, 123 S.Ct.
1029, 154 L.Ed.2d 931 (2003) (describing
standards for certificates of appealability to
issue).
Martinez v. Ryan, 566 U.S. at 14.
Respondents assert that this Court is procedurally barred from
reviewing this ground. Response at 39. This Court finds that subclaim twelve is unexhausted because Petitioner failed to fairly
raise his claim in the state court system, thus the trial court
never considered the merits of this claim.
Procedural

defaults

may

be

excused

under

certain

circumstances; "[a] petitioner who fails to exhaust his claim is
procedurally barred from pursuing that claim on habeas review in
federal court unless he shows either cause for and actual prejudice
from the default or a fundamental miscarriage of justice from
- 41 -

applying the default."

Lucas, 682 F.3d at 1353 (citing Bailey v.

Nagle, 172 F.3d 1299, 1306 (11th Cir. 1999) (per curiam)).

The

fundamental miscarriage of justice exception is only available in
extraordinary cases upon a showing of "'actual' innocence" rather
than mere "'legal' innocence."

Johnson v. Ala., 256 F.3d 1156,

1171 (11th Cir. 2001) (citations omitted), cert. denied, 535 U.S.
926 (2002).
Petitioner did not fairly and/or properly present this federal
constitutional claim to the state courts.

Any further attempts to

seek post conviction relief in the state courts on this ground will
be unavailing.

As such, he has procedurally defaulted this claim

of ineffective assistance of counsel.
Petitioner,

in

his

Reply,

suggests

that

this

procedural

default should be excused because he was not appointed counsel for
his post conviction proceedings in state court, but he recognizes
that in order to overcome his default, he must also demonstrate
that the underlying ineffectiveness claim is substantial. Reply at
3-4.

Indeed, "[t]o overcome the default, a prisoner must also

demonstrate that the underlying ineffective-assistance-of-trialcounsel claim is a substantial one, which is to say that the
prisoner

must

demonstrate

that

the

claim

Martinez, 566 U.S. at 14 (citation omitted).

has

some

merit."

As discussed in the

alternative merits analysis that follows, this ineffectiveness

- 42 -

claim lacks any merit. Therefore, Petitioner has not shown that he
can satisfy an exception to the bar.
The Court is not convinced that this ground has some merit.
First of all, Petitioner states that his counsel spoke with Brenda
Cochran, and she told him what she could testify to in relation to
the child victim and her sisters.

Thus, Petitioner's counsel was

aware of the testimony she could offer at trial.

Ultimately,

counsel, with Petitioner's consent, decided to call two witnesses:
Petitioner's two sons. Petitioner's sons were in the home of their
father, the Petitioner, and the boys' stepmother when the girls
were there.

Based on the allegations, all of the sexual battery

and molestation offenses occurred in the family dwelling.
At the colloquy during the trial, the trial court was assured
by Petitioner that he was satisfied with the decision to call only
his two sons as witnesses for the defense:
THE COURT: So you're satisfied that the
only thing that ought to be presented on your
behalf is the testimony from your two sons, is
that correct?
THE DEFENDANT: Yes, sir.
Ex. F at 500.
Matthew Permenter, one of the sons, testified he was in the
home when the girls were there, and Petitioner was not alone with
any of the girls, and the girls did not enter their parents'
bedroom individually. Ex. F at 505, 508. Matthew further attested

- 43 -

that he did not perceive anything unusual about how Petitioner
interacted with the girls or how the girls interacted with him.
Id. at 509-10.

David Permenter, the other son, testified that the

girls seemed to get along with Petitioner and did not act unusually
around him.

Id. at 517-18.

David also testified that he did not

see his father show "any kind of unusual affection" towards any of
the girls.

Id. at 518.

Petitioner's counsel's decision to present the testimony of
the two sons was certainly within the wide range of reasonable
professional assistance.

The sons were in the home and they

observed the girls interactions with Petitioner and observed the
demeanor of the victim and her sisters after these interactions.
Based on the record, Petitioner agreed with his attorney's decision
to call only Petitioner's sons as defense witnesses.
Although Petitioner states that Ms. Cochran saw the victim
naked and she did not observe any signs of sexual abuse, there
would not necessarily be any outward signs of sexual abuse,
particularly based on the nature of the abuse revealed in the trial
testimony.

Indeed, any outward signs of abuse would have been

highly unlikely as any injury would have been internal or observed
through examination, not casual observation, and, according to the
expert's testimony, any injury would have healed very quickly.
Petitioner has not shown either cause excusing the default or
actual prejudice resulting from the bar.

- 44 -

Moreover, he has failed

to identify any fact warranting the application of the fundamental
miscarriage of justice exception.
Even assuming Petitioner's claim is not procedurally barred,
he is not entitled to federal habeas relief.

He has failed to

carry his burden of showing that his counsel's representation fell
outside the range of reasonably professional assistance. Moreover,
even assuming deficient performance, Petitioner has not shown
resulting prejudice.

Indeed, he has not shown that a reasonable

probability exists that the outcome of the case would have been
different if counsel had called Brenda Cochran as a witness at
trial. In sum, Petitioner's ineffectiveness claim is without merit
since he has shown neither deficient performance nor resulting
prejudice. Thus, Petitioner is not entitled to relief on sub-claim
twelve.
13. Sub-claim Thirteen: ineffective assistance of counsel based on
the cumulative errors of counsel.
In his final ground for habeas relief, Petitioner claims that
the cumulative effect of all of counsel's errors resulted in the
deficient performance of counsel, and if not for the deficient
performance of counsel, the outcome of the trial would have been
different.

Petition at 16.

Since none of Petitioner's grounds

provide a basis for habeas relief, the cumulative effect of these
grounds certainly does not provide any foundation for granting
habeas relief.

- 45 -

This

ground

is

unexhausted

and

procedurally

defaulted.

Petitioner has not shown cause and prejudice. Additionally, he has
failed to show that failure to address this claim on the merits
would result in a fundamental miscarriage of justice.

The Court

finds this is not an extraordinary case as Petitioner has not made
a showing of actual innocence rather than mere legal innocence.
To the extent Petitioner is claiming lack of counsel in the
post conviction proceeding should excuse his default, he must
demonstrate

that

substantial.

The Court is not convinced that this ground has some

merit.

the

underlying

ineffectiveness

claim

is

Upon due consideration, the Court finds the cumulative

deficiencies of counsel claim is without merit.
As set forth above, [Petitioner] has not
demonstrated error by trial counsel; thus, by
definition, [Petitioner] has not demonstrated
that cumulative error of counsel deprived him
of a fair trial. See Yohey v. Collins, 985
F.2d 222, 229 (5th Cir. 1993) (explaining that
because
certain
errors
were
not
of
constitutional dimension and others were
meritless, petitioner "has presented nothing
to cumulate").
Miller v. Johnson, 200 F.3d 274, 286 n.6 (5th Cir.), cert. denied,
531 U.S. 849 (2000).
counsel

claims

are

If Petitioner's ineffective assistance of
insufficient

individually,

cumulatively does not render them sufficient.

raising

them

Robertson v. Chase,

No. 1:07-CV-0797-RWS, 2011 WL 7629549, at *23 (N.D. Ga. Aug. 12,
2011) (citations omitted), report and recommendation adopted by No.
1:07-CV-797-RWS, 2012 WL 1038568 (N.D. Ga. Mar. 26, 2012), affirmed
- 46 -

by 506 F. App'x 951 (11th Cir. 2013), cert. denied, 134 S.Ct. 93
(2013).
Petitioner is not entitled to relief on the basis of this
claim of ineffective assistance of counsel alleging the cumulative
errors of counsel.

Furthermore, since there were no errors of

constitutional dimension, the cumulative effect of any errors would
not subject Petitioner to a constitutional violation.

See Miller,

200 F.3d at 286 n.6.
Sub-claim thirteen is unexhausted and procedurally defaulted.
The underlying ineffective assistance of counsel claim is not a
substantial one as Petitioner has not demonstrated that the claim
has some merit.

The fundamental miscarriage of justice exception

is inapplicable to this situation. Thus, Petitioner is barred from
pursuing this ground. Petitioner is not entitled to relief on subclaim thirteen.
Accordingly, 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 accordingly

and close this case.

- 47 -

3.

If Petitioner appeals the denial of his Petition, the

Court denies a certificate of appealability.5
has

determined

that

a

certificate

of

Because this Court

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.
DONE AND ORDERED at Jacksonville, Florida, this 10th day of
October, 2017.

5

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.
- 48 -

sa 10/3
c:
James Permenter
Counsel of Record

- 49 -