Butler v. Secretary, Florida Department of Corrections et al

Filing 46

ORDER denying the Petition 1 and dismissing case with prejudice; directions to the Clerk. Signed by Judge Timothy J. Corrigan on 10/13/2020. (JND)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

RODGER N. BUTLER,
Petitioner,
v.

Case No. 3:17-cv-464-J-32PDB

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
________________________________
ORDER
I.

Status
Petitioner, an inmate of the Florida penal system, initiated this case by

filing a pro se Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254. Doc.
1. He is challenging a state court (Columbia County, Florida) judgment of
conviction for six counts of sexual battery by a person in familial or custodial
authority and one count of lewd or lascivious molestation of a child. Id. at 1. He
is currently serving a life term of incarceration. Id. Respondents have
responded. See Doc. 28; Response.1 Petitioner replied. Doc. 32. This case is ripe

Attached to the Response are numerous exhibits. See Doc. 16-1 through
Doc. 16-26. The Court cites to the exhibits as “Resp. Ex.”
1

for review.
II.

Governing Legal Principles
A. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

governs a state prisoner’s federal habeas corpus petition. See Ledford v.
Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.
2016), cert. denied, 137 S. Ct. 1432 (2017). “‘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, 565 U.S. 34, 38 (2011)).
The first task of the federal habeas court is to identify the last state court
decision, if any, that adjudicated the petitioner’s claims on the merits. See
Marshall v. Sec’y Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The
state court need not issue an opinion explaining its rationale for the state court’s
decision to qualify as an adjudication on the merits. See Harrington v. Richter,
562 U.S. 86, 100 (2011). When the state court’s adjudication on the merits is
unaccompanied by an explanation,
the federal court should “look through” the unexplained
decision to the last related state-court decision that
does provide a relevant rationale. It should then
presume that the unexplained decision adopted the
same reasoning. But the State may rebut the
presumption by showing that the unexplained
affirmance relied or most likely did rely on different
2

grounds than the lower state court’s decision, such as
alternative grounds for affirmance that were briefed or
argued to the state supreme court or obvious in the
record it reviewed.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
When a state court has adjudicated a petitioner’s claims on the merits, a
federal court cannot grant habeas relief unless the state court’s adjudication of
the claim 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)(1),
(2). A state court’s factual findings are “presumed to be correct” unless rebutted
“by clear and convincing evidence.” Id. § 2254(e)(1).
AEDPA “imposes a highly deferential standard for
evaluating state court rulings” and “demands that
state-court decisions be given the benefit of the doubt.”
Renico v. Lett, 559 U.S. 766, 773 (2010) (internal
quotation marks omitted). “A state court’s
determination that a claim lacks merit precludes
federal habeas relief so long as fairminded jurists could
disagree on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101
(2011) (internal quotation marks omitted). “It bears
repeating that even a strong case for relief does not
mean the state court’s contrary conclusion was
unreasonable.” Id. [at 102] (citing Lockyer v. Andrade,
538 U.S. 63, 75 (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, e.g., Mitchell v.
Esparza, 540 U.S. 12, 18 (2003); Lockyer, 538 U.S. at
3

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 (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) (internal
citations modified).
B. Ineffective Assistance of Trial Counsel
“The Sixth Amendment guarantees criminal defendants effective
assistance of counsel. That right is denied when a defense counsel’s
performance falls below an objective standard of reasonableness and thereby
prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam)
(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v.
Washington, 466 U.S. 668, 687 (1984)). To establish ineffective assistance, a
person must show that: (1) counsel’s performance was outside the wide range of
reasonable, professional assistance; and (2) counsel’s deficient performance
prejudiced the challenger in that there is a reasonable probability that the
outcome of the proceeding would have been different absent counsel’s deficient
performance. Strickland, 466 U.S. at 687.
There is no “iron-clad rule requiring a court to tackle one prong of the
Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir.
2010). Since both prongs of the two-part Strickland test must be satisfied to

4

show a Sixth Amendment violation, “a court need not address the performance
prong if the petitioner cannot meet the prejudice prong, and vice-versa.” Id.
(citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As stated in
Strickland: “If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, which we expect will often be so, that course should
be followed.” 466 U.S. at 697.
“The question is not whether a federal court believes the state court’s
determination under the Strickland standard was incorrect but whether that
determination was unreasonable - a substantially higher threshold.” Knowles
v. Mirzayance, 556 U.S. 111, 123 (2009) (quotation marks omitted). If there is
“any reasonable argument that counsel satisfied Strickland’s deferential
standard,” then a federal court may not disturb a state-court decision denying
the claim. Richter, 562 U.S. at 105. As such, “[s]urmounting Strickland’s high
bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
“Reviewing courts apply a ‘strong presumption’ that counsel’s representation
was ‘within the wide range of reasonable professional assistance.’” Daniel v.
Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th Cir. 2016) (quoting
Strickland, 466 U.S. at 689). “When this presumption is combined with §
2254(d), the result is double deference to the state court ruling on counsel’s
performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans v. Sec’y, Dep’t

5

of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc) (Jordan, J.,
concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004).
III.

Evidence at Trial
Petitioner raises twelve grounds for relief. To add context to these issues,

the Court summarizes the evidence produced at trial. Marsha Butler, the
victim’s mother, testified she and Petitioner were married from 2002 until 2009.
Resp. Ex. F at 36-37. Marsha explained she and Petitioner had two children
together and she also had a child from a previous marriage, the victim E.M. Id.
Marsha testified that E.M. lived with her and Petitioner during the duration of
their marriage. Id. According to Marsha, during their marriage, she worked at
least 48 hours a week as an emergency room nurse, and Petitioner worked
intermittently until 2005 when Petitioner became the fulltime contractor
working on building their home. Id. at 41. She stated that around that time,
E.M. began homeschooling at the age of 13, so she could help with childcare and
assist Petitioner with work on the new house. Id. at 42. According to Marsha,
Petitioner always wanted E.M. with him when he went to the construction site,
and he refused to take another child to help. Id. at 44. Marsha explained that
during the course of her marriage to Petitioner, she was aware of only one
occurrence of inappropriateness between E.M. and Petitioner, in which E.M.
told Marsha that Petitioner showed E.M. a “sexual toy” that Marsha kept in her
drawer. Id. at 47. Marsha explained that she confronted Petitioner about his
6

actions, and Petitioner advised that he showed her the toy to “enlighten[ ] [E.M.]
on sexuality” and “broaden her horizons,” to which Marsha replied it was not
Petitioner’s job to “sexually educate a 13 year old girl.” Id. at 47-48.
Marsha stated that after she divorced Petitioner, E.M. still had overnight
visitations with Petitioner, but the visits stopped after Petitioner drove E.M.
from Tennessee back to Florida without Marsha’s permission. Id. at 63-65.
When E.M was six weeks away from her 18th birthday, Marsha found sexually
explicit text messages on E.M.’s phone between E.M. and her boyfriend Travis.
Id. at 67. When Marsha confronted E.M. about the messages, E.M. informed
Marsha that Petitioner had sexually abused her. Id. at 68-69. Marsha explained
she contacted police immediately and Detective Katina Dicks interviewed her
and E.M. Id. at 70.
E.M.’s stepbrother, J.B., testified he lived with his father (Petitioner) and
Marsha while they were married. Id. at 77. J.B. testified that one day when he
was between the ages of 11 and 13, he walked to the building site to see his
father and E.M. once he got home from school. Id. at 79. He explained that he
walked into the house and down the hallway, and when he looked into the
master bedroom, he saw E.M “on her knees and [his] dad just standing there.”
Id. at 79. He explained that E.M. was kneeling directly in front of Petitioner
and had her hands on his zipper. Id. J.B. stated he quickly walked out of the
house and his father ran after him, telling J.B. that his zipper was stuck and
7

E.M. was helping him fix it. Id. at 81.
At the time of trial, E.M. was 18 years old. Id. at 99. E.M. testified that
she and her mother began living with Petitioner when E.M. was 6 years old. Id.
at 100. When E.M. was 13, she began homeschooling, so she could help babysit
her younger brother and help Petitioner as he built their new house. Id. at 10306. According to E.M., it was at that time, when she was 13, that Petitioner
began sexually abusing her. Id. at 109-10. She explained that the first time he
abused her, she and her brother were sleeping in their bunk beds when
Petitioner came in and began touching her vagina over her clothing. Id. at 111.
She stated that in the following months, Petitioner continued to abuse her in
this way, but the abuse progressed, and he began touching himself and
eventually put his hand in her underpants. Id. at 113. E.M. testified that when
she was 14 years old, she and Petitioner were “wrestling” in the living room
when Petitioner held her down, took off her pants and underwear, and
penetrated her vagina with his penis. Id. at 115. After the incident, Petitioner
told her he would kill himself if she told anyone. Id. at 116.
E.M. explained that Petitioner continued to abuse her by vaginal or oral
penetration until she was 17 years old. Id. When E.M. was between the ages of
14 and 15, he abused her in this manner “at least once or twice a week.” Id. at
117. She further explained that when she was between the ages of 15 and 17,
Petitioner abused her through vaginal or oral penetration “at least three or four
8

times a week.” Id. at 118. She stated she never told anyone about the abuse
because she believed Petitioner would kill himself and he was the only father
figure in her and her siblings’ lives. Id. at 119-20. However, she recalled that on
one occasion, her brother J.B. walked in while she was performing oral sex on
Petitioner, but she’s never spoken to her brother about what he saw. Id. at 12021.
According to E.M., Petitioner would force E.M. to perform sexual acts by
bribing her with material items (i.e., clothing, bags, pets) or as a form of
punishment. Id. at 122-23. She stated that after her mother and Petitioner’s
divorce, E.M. continued to visit Petitioner, so she could help care for her younger
siblings. Id. at 123-24. E.M. stated Petitioner continued to sexually abuse her
during this time. Id. at 124. E.M. explained the abuse stopped when she stopped
visiting Petitioner around her 17th birthday and when she started dating
Travis. Resp. Ex. G at 132. E.M. stated that her mother found sexually explicit
text messages between E.M. and Travis and confronted E.M. about not being
honest. Id. at 136. During this conversation, E.M. told her mother “everything”
about Petitioner’s abuse. Id. According to E.M., her mother immediately called
police. Id. at 137. E.M. also testified Petitioner had a distinguishing “scar” or
skin tag on the top of his penis. Id. at 121.
E.M. testified that police asked her to wear a recording device and have a
conversation with Petitioner the next time he comes over to pick up her siblings.
9

Id. at 137. E.M. complied and recorded a scripted conversation with her and
Petitioner regarding her mother calling the police about Travis’ inappropriate
text messages, and that she was scared Travis would tell the police about
Petitioner’s abuse because she disclosed the abuse to Travis. Id. at 146. The
recording was played for the jury. Id. at 148-49. During the conversation,
Petitioner is heard pleading with E.M. to please not tell anyone about their
sexual activities because it would “destroy” him. Id. at 148-49. When E.M. tells
Petitioner she was just a child and he did not have to do that to her, Petitioner
responds, “You liked that, too.” Id. at 147.
Detective Dicks testified she was the lead detective on Petitioner’s case
and arranged for the controlled conversation to occur. Id. at 168-69. She
explained

that

following

the

controlled

conversation,

Petitioner

was

immediately transported to the police station where she conducted an interview
of Petitioner. Id. at 169. Following the reading of Petitioner’s Miranda2 rights,
the Detective interviewed Petitioner. Id. at 177. He denied ever abusing E.M.
and he disclosed he had a distinguishing scar on his penis. Id. at 177. He stated
that E.M. knew about the scar because it was “common knowledge” and that
everyone in his family knew about the scar. Id. at 178.
Petitioner testified at trial that he was really surprised that E.M.

2

Miranda v. Arizona, 384 U.S. 436 (1966).
10

confronted him with such allegations on the night he was arrested. Id. at 21213. He admitted that in December 2009, he did have sexual contact with E.M.,
but he did not initiate the contact, nor did he participate in it willingly. Id. at
214. He stated he and E.M. were laying on the couch watching a movie and he
fell asleep. Id. He testified he then woke up to “some sensation down there” and
saw E.M. sitting up with her hand down his pants. Id. He said he got up and
asked what she was doing, and she replied that she was “helping” him. Id. He
stated that was the only time he ever had any inappropriate contact with her
but she offered sexual favors “once or twice a month” thereafter. Id. at 216. On
cross-examination, Petitioner admitted that during his police interrogation, he
did not inform police about the December 2009 incident. Id. at 220.
IV.

Petitioner’s Claims and Analysis
a. Ground One
Petitioner argues his trial attorney was ineffective for failing to move to

suppress certain evidence from the initial investigation of the crimes and
primarily challenge the manner in which he was arrested. Doc. 1 at 6-14.
Though not a picture of clarity, he appears to argue that E.M.’s wire recording
of their conversation amounted to a police interrogation, violating his Fifth,
Sixth, and Fourteenth Amendment rights; and that his subsequent arrest was
violent as he was “confronted by officers, guns pointed at him and physically
attacked, handcuffed and placed in backseat of police car.” Id. at 8.
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Petitioner asserts he raised this claim as ground thirteen of his Florida
Rule of Criminal Procedure 3.850 motion for postconviction relief. Doc. 1 at 6;
Resp. Ex. HH at 88-92. The trial court denied the claim, finding in pertinent
part as follows:
The Defendant alleges that counsel was
ineffective for failing to move for suppression of certain
evidence from the initial investigation of the crimes
committed. Motion at 37. The Defendant lists eleven
concerns that he has with evidence that came from the
initial investigation. Motion at 37-41. Each of the
Defendant’s claims is subjective opinion of
inadmissibility. Many of the claims relate to the
manner in which the Defendant was arrested. The
Defendant does not appreciate that he was handcuffed
and taken into custody by police, as the Defendant
labels the arresting officer as an “attacker.” Motion at
39. The Defendant claims that police instilled fear in
him because he was arrested with a “display of guns
drawn and pointed at [the Defendant].” Motion at 38.
The Defendant simply describes a regular arrest and
investigation and points out no facts of misconduct;
certainly no misconduct that would result in a
suppression of evidence.
Many other claims made in this section of the
instant motion relate to issues already discussed in this
order. The Defendant again refers to his displeasure
with the victim confronting the Defendant and asking
him questions while wearing a recording device. This
issue has been resolved as the recording was made for
the purpose of a police investigation as explained in
Argument One of this order. The Defendant also
revisits the issue of the skin tag which has been
thoroughly discussed throughout this order. Motion at
40. Finally, the Defendant makes several claims that
the investigator was biased towards the victim,
including claims such as, the investigator acted “with
12

premeditated agenda for [the victim] to deliberately
elicit self-incrimination from [the Defendant].” Motion
at 38. These claims are meritless as this is the very job
of the police, to investigate suspects for crimes and
illicit information from the suspect as to the acts
committed.
Resp. Ex. II at 205. The First District Court of Appeal issued a written opinion
affirming the trial court’s denial of this claim.3 Resp. Ex. LL. To the extent that
the First DCA affirmed the denial on the merits, the Court will address the
claim in accordance with the deferential standard for federal court review of
state court adjudications.
At Petitioner’s sentencing hearing, the trial court heard argument on a
pro se motion alleging various claims of ineffective assistance of counsel.4 Resp.
Ex. D at 15. During the hearing, Petitioner argued that counsel should have
moved to suppress the audio recording between him and E.M. because he felt it
violated his Fourth Amendment rights and his “right to privacy.” Id. at 15. Trial
counsel responded that he considered filing a motion to suppress but

In its written opinion, the First DCA “affirmed the post-conviction order
without additional comment, except for [Petitioner’s] second claim.” Resp. Ex.
LL. As to ground two, the court reversed and remanded with specific
instructions that the trial court either conduct an evidentiary hearing or
provide the appellate court with record attachments refuting that claim. Id.
3

The trial court was initially reluctant to hear any argument on
Petitioner’s pro se claims on ineffective assistance during his sentencing
hearing, but trial counsel insisted that he respond to Petitioner’s complaints on
the record. Resp. Ex. OO at 14.
4

13

determined that such motion would not have been successful because the
recording was made at the home of his ex-wife rather than Petitioner’s home
and the type of recording was similar to recordings made in routine controlled
drug buy cases. Id. As such, trial counsel felt that there was no basis for filing
a motion to suppress because the recording was made during the course of a
police investigation and they clearly had E.M.’s consent to participate in the
controlled conversation. Id. at 16. He explained that he discussed the issue with
Petitioner, explained he could not suppress it and that despite any objection,
the court would have overruled it. Id. Indeed, at trial, trial counsel did object to
the introduction of the recording, however, the objection was overruled because
the recording was created during a police investigation. Resp. Ex. F at 138-39.
Thus, after a review of the record and the applicable law, the Court
concludes that the state court’s adjudication of the claim 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 given the evidence presented in the state court
proceedings. Ground One is due to be denied.
b. Ground Two
Petitioner argues the trial court failed to enter a signed written order
denying his motion for new trial in violation of Florida Rule of Appellate
Procedure 9.020(h)(1). Doc. 1 at 16. He avers the trial court instead erroneously
14

orally denied the motion during his sentencing hearing; and he appears to
allege that the failure to enter a written order means his criminal conviction is
not final and is thus now “dischargeable.” Id. He also argues that trial counsel
was ineffective for failing to procure a signed written order of denial, and that
the recusal of the Honorable Paul Bryan prior to the entry of a signed written
order of denial further violated his due process rights. Id. at 19.
In December 2015 and again in January 2016, Petitioner filed
postconviction motions with the trial court arguing that he is entitled to a
signed written order disposing of his motion for new trial. Resp. Ex. RR. The
trial court denied the motions, finding the following:
In the instant motions, the Defendant alleges
that he is entitled to “a signed written order pursuant
to Florida Statute 924.065(1)” on his motion for new
trial, which was heard on June 6, 2011, just prior to
sentencing. The Defendant further maintains that the
Honorable Paul S. Bryan, trial judge, should enter this
required written order. Judge Bryan, however, was
recused from this case and any matter in which the
Defendant is involved; accordingly, His Honor cannot
legally enter any orders in this case or any case
involving the Defendant. Moreover, the Defendant is
not legally entitled to the relief he seeks – that is, a
signed, written order on his June 6, 2011, motion for
new trial.
In its entirety, section 924.065(1) provides:
Immediately after denial of a motion for a
new trial or a motion in arrest of judgment,
the court shall dictate the denial to the
court reporter and sentence the defendant.
15

The defendant may file notice of appeal
following denial of the motion and
sentencing. Upon filing of notice of appeal,
the court shall set the amount of the appeal
bond if the defendant is entitled to bail. The
clerk shall prepare a certificate setting
forth the filing and approval of the
supersedeas bond, and the certificate shall
be sufficient authority for release of the
defendant.
Nothing within this section mandates that a written
order must be entered on a motion for new trial. In fact,
the explicit language of the statute indicates that an
oral order by the trial judge is appropriate: “the court
shall dictate the denial to the court reporter.” That is
precisely what occurred in this case. Towards the end
of the June 6, 2011, sentencing hearing, after the
various pro se motions were argued and addressed, the
pending motion for new trial was addressed:
THE COURT: ... Is there any legal cause to
show why sentence cannot now proceed?
You do have a motion for new trial, do you
not Mr. Hunt, yourself?
[TRIAL COUNSEL]: Yes, sir, I do. The -raised from the standard grounds that the
verdict was contrary to the evidence.
Contrary to the law. I don’t wish to be
heard further about that. It alleged that
the Court erred in denying the motions for
judgement of acquittal, and also in
overruling my objection to the admission of
the recording between the Defendant on
the one hand and [E.M.] on the other, but
we’ve already addressed that at some
length, so I don’t wish to be heard.
I also did raise the issue of
permitting Stacy McCrae to serve on the
16

jury, but I’ll acknowledge I did not perserve
[sic] that with an objection and I did not
challenge Stacy McCrae.
THE COURT: And you had specifically
discussed that with your client and were
given time to do that?
[TRIAL COUNSEL]: Yes, sir.
THE COURT: All right. Anything else?
[TRIAL COUNSEL]: And at the -THE COURT: On the Motion for New
Trial?
[TRIAL COUNSEL]: -- at the time my
client actually told me he wanted her to be
on the jury because he knew the jailer was
a really nice person and Benjamin was a
really nice person, so therefore he thought
she came from a -- he came from a good
family, that she must be a good person, so,
I left her on.
THE COURT: Anything else on motion for
new trial?
[TRIAL COUNSEL]: No, sir.
THE COURT: Does the State wish to be
heard on the official or the attorney filed
Motion for New Trial?
[THE STATE]: We would just say that in
terms of the verdict being against the
weight of the evidence, we would say the
evidence speaks for itself. The denial of the
objections. Judge, we would rely on what
was presented at trial. And as to that juror
17

serving, you know, it’s just hindsight now,
you know, saying, well, I guess I wish I
wouldn’t have had that person. I don’t see
a valid ground there.
THE COURT: The Motion for New Trial
filed by Mr. Hunt is denied on all basis
raised so I’ve now denied the Motion for
New Trial however it may be styled. There
some that are pro se, there are some that
are Mr. Hunt’s. They’re all denied on all
counts, on all basis.
Sentencing Hearing transcript at 50-51. As the above
passage illustrates, the sentencing judge, after hearing
the arguments pertaining to the motion for new trial,
rendered an oral ruling that was dictated to the court
reporter
and
appropriately
transcribed.
And
immediately following this ruling, the trial court
sentenced the Defendant. This was in accordance with
the demands of section 924.065(1).
The Defendant’s reliance on “Rule 9.020(i)(l) App.
P.,” which he claims is applicable and would mean that
the oral ruling on the motion for new trial “SHALL
NOT BE DEEMED RENDERED -UNTIL THE FILING
OF A SIGNED WRITTEN ORDER” is completely
misplaced. Defendant’s Motion for Reversal of Case for
New Trial due to Court Error Unrecoverable at 3. This
appellate rule, Florida Rule of Appellate Procedure
9.020, does not mandate that an oral ruling on a presentence motion for new trial is not effective or
rendered until it is reduced to writing. The Defendant
misreads and misapplies this rule.
Finally, even if the Defendant were seeking a
ruling on the seemingly outstanding written motion for
new trial filed by his trial counsel post-trial, that
motion was deemed abandoned when the Defendant
sought to appeal his convictions and sentences-albeit, a
belated appeal given the procedural posture of this
18

case. See e.g., Johnson v. State, 154 So. 3d 1184 (Fla.
4th DCA 2015) (“when appellant filed a notice of
appeal, while his second Motion for New Trial was
pending before the trial court, he abandoned the motion
and divested the trial court of jurisdiction to rule on it”).
This case, like the Johnson case, predates enactment of
the amended Rule 9.020(i), which eliminates the
language providing that postjudgment motions are
abandoned upon the filing of a notice of appeal. As such,
that post-trial and sentence motion for new trial was
deemed abandoned when the Defendant sought to and
successfully did appeal his convictions and sentences,
and this Court lacks jurisdiction to render a ruling on
the motion.
Resp. Ex. RR. Petitioner then appealed the trial court’s order by filing a petition
for writ of certiorari with the First DCA. Resp. Ex. SS. The First DCA per
curiam denied the petition without a written opinion. Resp. Ex. TT.
To the extent that the First DCA affirmed the denial on the merits, the
Court will address the claim in accordance with the deferential standard for
federal court review of state court adjudications. In doing so, the Court notes
that during Petitioner’s sentencing hearing Petitioner filed a pro se construed
motion for new trial and trial counsel also filed a motion for new trial. Resp. Ex.
D at 51. After hearing argument from the state, trial counsel, and Petitioner,
the trial court denied the motions for new trial on the record. Id. The trial court
then sentenced Petitioner to a life term of incarceration on count one and a
concurrent 631.5 month-term of incarceration on counts two through six. Id. at
66. Petitioner then sought a direct appeal and the First DCA per curiam

19

affirmed his judgment and sentence without a written opinion. Resp. Ex. M.
Petitioner sought review with the Florida Supreme Court, however, the court
declined jurisdiction. Petitioner’s judgment and sentence are final, and the trial
court was not required to enter a written order on his motions for new trial. As
such, the state court’s adjudication of this claim was not contrary to clearly
established federal law nor was it an unreasonable determination in light of the
facts presented in the state court proceeding. Further, as to any claim that
counsel was ineffective for failing to procure a signed written order on
Petitioner’s motion for new trial, Petitioner cannot demonstrate deficient
performance or prejudice from such alleged deficiency. Ground Two is due to be
denied.
c. Ground Three
Petitioner argues his Sixth Amendment right to conflict-free counsel was
violated at the hearing on his pro se motion for new trial based on ineffective
assistance of trial counsel, and at sentencing thereafter. Doc. 1 at 20-23.
Petitioner, with the help of appellate counsel, raised this claim as “Issue I”
during his direct appeal. Resp. Ex. J at 10. In his initial brief, Petitioner noted
that at the beginning of Petitioner’s sentencing hearing, Petitioner filed a pro
se motion for new trial containing arguments regarding trial counsel’s alleged
ineffectiveness at trial. Id. at 11. He explains that when the trial court heard
argument on the motion, “[d]efense counsel was placed in a position of testifying
20

in direct conflict to [Petitioner’s] allegations and interests”; and “was placed in
an adversary position relative to . . . his client.” Id. at 11-12. As such, according
to Petitioner, Petitioner was entitled to conflict-free counsel to represent him
during a critical stage of his proceedings. Id.
In its answer brief, the state argued this argument was not preserved for
appellate review because Petitioner never requested the trial court to appoint
conflict-free counsel for purposes of sentencing. Resp. Ex. K at 12. It also argued
that even assuming the claim was preserved, it is without merit because none
of the claims Petitioner asserted in support of his claim that counsel was
ineffective were viable, and thus, he was unable to show that there was an
actual conflict of interest warranting substitution of counsel. Id. at 22.
The state addressed each of the claims Petitioner asserted to support his
allegation that trial counsel was ineffective at trial. Id. at 15-22. It first argued
trial counsel had no legal basis to challenge the recorded conversation between
Petitioner and E.M.; that Petitioner’s current challenge to his pretrial detention
is now moot; and that trial counsel had no basis to challenge Petitioner’s custody
revocation of J.B. because it was unrelated to the criminal case. Id. at 17. The
state also noted trial counsel had no basis to challenge an unrelated domestic
violence case, or to challenge the alleged unlawful entry into Petitioner’s home
because the state did not present any evidence obtained from his home during
his trial. Id. at 18. It further explained trial counsel was not ineffective for
21

failing to ensure Petitioner’s presence during a brief pretrial status conference;
and counsel was not ineffective for failing to subpoena Marsha’s father as a
witness because Marsha’s own sexual abuse was irrelevant. Id. The state also
noted that trial counsel explained during the sentencing hearing that he made
a tactical decision to not present evidence of E.M.’s other sexual partners or to
pursue DNA evidence of other individuals. Id. Finally, the state noted that trial
counsel testified at the sentencing hearing that he had no basis to object to
Detective Dicks’ testimony at Petitioner’s bond hearing. Id. at 22. Upon
consideration of these arguments, the First DCA per curiam affirmed
Petitioner’s judgment and sentence without a written opinion. Resp. Ex. M.
To the extent that the First DCA affirmed the denial on the merits, the
Court will address the claim in accordance with the deferential standard for
federal court review of state court adjudications. A true conflict of interest must
be actual and not merely potential or hypothetical. Cuyler v. Sullivan, 446 U.S.
335, 350 (1980). The mere possibility of a conflict is insufficient and must be
based on a showing that counsel has interests inconsistent with the defendant’s
and that the conflict adversely affected the lawyer’s performance. Both prongs
of this test—actual conflict and adverse effect on counsel’s performance—must
be met. See Buenoano v. Singletary, 74 F.3d 1078, 1086 (11th Cir. 1996); Smith
v. White, 815 F.2d 1401, 1404 (11th Cir. 1987). Contrary to Petitioner’s
contentions, his disagreement over whether counsel properly prepared for trial
22

and his unhappiness with the outcome of trial do not create an actual conflict
or demonstrate the type of prejudice requiring the appointment of new counsel.
Based on trial counsel’s responses to each of Petitioner’s complaints at his
sentencing hearing, the trial court concluded that counsel acted reasonably.5
After reviewing the record, the Court finds the state court’s adjudication of this
claim was not contrary to clearly established federal law nor was it an
unreasonable determination of the facts in light of the evidence presented in
the state court proceeding. Ground Three is due to be denied.
d. Ground Four
Petitioner argues his trial attorney was ineffective for failing to
investigate Petitioner’s “probable cause affidavit” and move for dismissal at or
before Petitioner’s arraignment. Doc. 1 at 25. It appears Petitioner is
challenging the detective’s search warrant affidavit. Petitioner raised this claim
as ground fourteen in his Rule 3.850 motion. Resp. Ex. II at 205. The trial court
denied the claim as follows:
The Defendant alleges that counsel was
ineffective for failing to “be diligent and read and
confirm the contents of the probable cause affidavit.”
Motion at 42. The Defendant argues that if counsel had
better investigated the probable cause affidavit, then
counsel would have found the probable cause affidavit
to be “fraudulent and legally insufficient.” The
Defendant then points out areas in the probable cause
The trial court’s inquiry here was no different than that in a Nelson v.
State, 274 So. 2d 256 (Fla. 4th DCA 1973).
5

23

affidavit where he believes there are omissions or
mistakes. Motion at 42-47. None of these allegations
raise valid claims of legal merit.
First, the Defendant was convicted of the crimes
in this case based on the official charging document
from the State, which is the Information, and not the
probable cause affidavit. Additionally, the probable
cause affidavit very well could have contained
mistakes, omissions, or other insignificant errors.
However, the affidavit was more than sufficient for the
State to follow-up with an investigation and
subsequent filing of charges through an Information by
which the Defendant was ultimately charged, tried,
and properly convicted. See attached Probable Cause
Affidavit. Regardless of any concerns the Defendant
may have, (most of which are the Defendant adding his
own thoughts as to what other irrelevant information
he would like to be contained within the probable cause
affidavit), the probable cause affidavit contained all the
information necessary to charge the Defendant with
the seven counts of sexual battery and lewd or
lascivious molestation. The probable cause affidavit
includes specific details for pages about the Defendant
fondling the victim at age 13, having sexual intercourse
with the victim, forcing the victim to perform oral sex
acts, and forcing the victim to manually stimulate the
Defendant. The affidavit states that the victim would
cry when the Defendant had sex with the victim, that
the victim was forced to watch pornographic material
to learn how to perform oral sex on the Defendant, and
that on a few occasions, the Defendant used arm and
leg restraints on the victim while performing sexual
acts. The affidavit provides that the Defendant forced
sex acts upon the victim hundreds and hundreds of
times. See attached. It is adequate to say that the
probable cause affidavit was sufficient to serve its
purpose. Counsel cannot be deemed ineffective for
failing to discern what the Defendant claims are errors
in that affidavit. Again, the Defendant was not
prejudiced as he was ultimately found guilty based
24

upon the evidence presented against him at trial.
Resp. Ex. II at 205-06 (citing Resp. Ex. II at 298-301). The First DCA per curiam
affirmed the trial court’s denial without a written opinion. Resp. Ex. LL. To the
extent the First DCA addressed this claim on the merits, the Court will address
the claim in accordance with the deferential standard for federal court review
of state court adjudications.
As the state court noted, the information in the subject affidavit had no
impact on the jury’s verdict. Rather, this affidavit was executed in support of a
search warrant to obtain a photograph of Petitioner’s genitals for purposes of
confirming any distinguishing marks and such photographs were not presented
at trial. Resp. Ex. II at 301. As such, upon thorough review of the record and
the applicable law, the Court finds that the state court’s decision to deny
Petitioner’s claim is neither contrary to nor an unreasonable application of
Strickland, and it is not based on an unreasonable determination of the facts
given the evidence presented to the state court. Ground Four is due to be denied.
e. Ground Five
Petitioner contends his trial counsel was ineffective for failing to move for
a Richardson6 hearing when the state committed a discovery violation by filing
an Amended Information, and for failing to ask that a continuance be charged

6

Richardson v. State, 246 So. 2d 771 (Fla. 1971).
25

the state, so Petitioner would not have to waive his speedy trial rights by asking
for a continuance. Doc. 1 at 62. Petitioner raised a similar claim in his Rule
3.850 motion.7 Resp. Ex. HH at 74. The trial court denied the claim as follows:
The Defendant alleges that counsel was
ineffective because counsel moved for a continuance
following the State filing an amended Information.
Motion at 23. The Defendant has failed to point out any
deficiency by his counsel in this claim. The State is
permitted to file an amended Information. It would
then be far more dangerous for defense counsel to rush
to trial while unprepared, rather than filing a motion
to continue in order for defense counsel to have
adequate time to prepare a reasonable defense on
behalf of the Defendant.
Resp. Ex. HH at 199. The First DCA per curiam affirmed the trial court’s denial
without a written opinion. Resp. Ex. LL. To the extent the First DCA addressed
this claim on the merits, the Court will address the claim in accordance with
the deferential standard for federal court review of state court adjudications.
“A Richardson hearing is held to determine whether the State committed
a discovery violation in contravention of the Florida Rules of Criminal
Procedure and, if so, whether the non-compliance resulted in prejudice to the
defendant’s ability to prepare for trial.” Cisneros v. McNeil, No. 8:05-cv-762-T27TGW, 2008 WL 1836368, at *5 (M.D. Fla. Apr. 23, 2008). A discovery violation

Petitioner also raised a similar claim in his petition alleging ineffective
assistance of appellate counsel under Florida Rule of Appellate Procedure
9.141. Resp. Ex. P at 74. Here, Petitioner clearly challenges trial counsel’s
effectiveness, so the Court refers to Petitioner’s Rule 3.850 claim.
7

26

is a question of state law, and thus, the Court defers to the state court’s
determination that trial counsel was not deficient for failing to object to the
Amended Information. See Huddleston v. Sec’y Dep’t of Corr., No. 8:16-cv-76-T02AAS, 2019 WL 339225, at *5 (M.D. Fla. Jan. 28, 2019) (holding that “[w]hile
the issue before the court is one of ineffective assistance, a question cognizable
on federal habeas review, the underlying issue of whether a discovery violation
occurred under Florida law and whether counsel should have objected and
moved for a Richardson hearing is a question of state law” that binds the court).
In any event, to support his contention that the state committed a discovery
violation, Petitioner merely argues the Amended Information resulted in
counsel moving for a continuance. That argument does not demonstrate
prejudice under Strickland. In sum, upon thorough review of the record and the
applicable law, the Court finds that the state court’s decision to deny
Petitioner’s claim is neither contrary to nor an unreasonable application of
Strickland, and it is not based on an unreasonable determination of the facts
given the evidence presented to the state court. Ground Five is due to be denied.
f. Ground Six
Petitioner contends his trial counsel was ineffective for failing to strike a
biased juror – Ms. McRae. Doc. 1 at 65. Petitioner raised this claim in his Rule
3.850 motion. Resp. Ex. HH at 75. The trial court denied the claim as follows:
The

Defendant

alleges
27

that

counsel

was

ineffective in voir dire as it relates to the selection of
the juror named Stacy McRae. The Defendant claims
that McRae stated during voir dire: “Abuse of a child,
any kind of abuse of a child.” Motion at 24. The context
is not entirely clear, but it is clear that McRae did in
fact state during voir dire that she would not judge
people but look at the facts. See attached Jury Selection
transcript at 43. Most importantly, however, is how
McRae was finally selected to be a member of the jury.
The Court addressed each juror individually. When the
Court asked the State and defense counsel specifically
about selecting McRae to serve as a member of the jury,
defense counsel responded by saying, “[l]et me confer
one more time.” See attached Jury Selection transcript
at 73. At which point defense counsel discussed with
the Defendant the juror selection. It is not clear what
exactly was said between counsel and the Defendant,
but when defense counsel finished conferring directly
with the Defendant, defense counsel stated: “Defense
accepts the jury.” The Court follows up by asking
defense counsel again, “[a]nd you had a conference with
your client just then?” to which defense counsel
answered, “Yes, I did.” See attached Jury Selection
transcript at 73. It is clear that the choice to add McRae
to the jury was discussed directly with the Defendant
and the Defendant and defense counsel found McRae to
be a satisfactory choice for the jury.
Resp. Ex. HH at 199. The First DCA per curiam affirmed the trial court’s denial
without a written opinion. Resp. Ex. To the extent the First DCA addressed this
claim on the merits, the Court will address the claim in accordance with the
deferential standard for federal court review of state court adjudications.
During jury selection, it is not clear if Ms. McRae said anything about her
opinions on the nature of Petitioner’s charges. Resp. Ex. E at 26. However, Ms.
McRae did advise the parties that her son is Benjamin McRae, III, and he
28

worked at the Columbia County Jail. Id. at 26. She further stated that this fact
would not affect her evaluation of the witnesses or evidence. Id. During the
parties’ cause challenges, the state did not challenge the selection of Ms. McRae
and after conferring with Petitioner, trial counsel advised that the “[d]efense
accepts the jury.” Id. at 73. At Petitioner’s sentencing hearing, Petitioner, for
the first time, argued in a pro se motion that he was entitled to a mistrial
because Ms. McRae was a biased juror who deliberated in his case. Resp. Ex. D
at 7-8. In support of his claim, Petitioner argued that prior to his trial Ms.
McRae’s son, Benjamin McRae, always treated him nicely in the jail, and that
after the verdict, his demeaner changed and thus Petitioner was convinced that
Ms. McRae improperly spoke to her son about the case. Id. However, Petitioner
admitted that he told Benjamin McRae about his pending case and openly spoke
about the trial while he was in the jail. Id. at 9. Trial counsel then advised the
trial court that when they selected Ms. McRae as a juror, he and Petitioner were
aware that her son worked at the jail. Id. at 8. Trial counsel specifically recalled
conferring with Petitioner about Ms. McRae’s son, and based on that
conversation, counsel decided not to challenge her. Id. at 11. Indeed, trial
counsel advised that “at the time [Petitioner] actually told me he wanted her on
the jury because he knew the jailer was a really nice person, so therefore he
thought . . . he came from a good family, that she must be a good person, so I
left her on.” Id. at 50.
29

Upon thorough review of the record and the applicable law, the Court
finds that the state court’s decision to deny Petitioner’s claim is neither contrary
to nor an unreasonable application of Strickland, and it is not based on an
unreasonable determination of the facts given the evidence presented to the
state court. See Price v. Sec’y Dep’t of Corr., 558 F. App’x 871, 872-73 (11th Cir.
2014) (holding that it was not unreasonable application of clearly established
federal law for the Florida courts to conclude that defendant could not argue
that counsel had been ineffective for failing to strike a juror that the defendant
had approved); Kelley v. State, 109 So. 3d 811, 812 (Fla. 1st DCA 2013) (“Thus,
it follows that a defendant who . . . personally affirms his acceptance of the jury
panel will not be heard to complain in a postconviction motion that his counsel
was ineffective for allowing a biased juror to serve on his jury.”). Ground Six is
due to be denied.
g. Ground Seven
Petitioner contends his trial attorney was ineffective for failing to present
the photographs and drawings of Petitioner’s penis to challenge E.M.’s
credibility regarding the location of his skin tag. Doc. 1 at 68-69. Petitioner
raised a similar claim in his Rule 3.850 motion.8 Resp. Ex. HH at 76. The trial

In his Rule 3.850 motion, Petitioner also argued that the photographs
were Brady material. Resp. Ex. HH at 76. Here, however, Petitioner does not
cite to or argue this claim under Brady v. Maryland, 373 U.S. 83 (1963). Doc. 1
at 69-71.
8

30

court denied the claim, finding in relevant part the following:
The Defendant alleges that defense counsel was
“objectively unreasonable in performance to not correct
the State’s improper burden shifting and nonadmission of 3 pieces of material evidence favorable to
the Defendant, in trial.” Motion at 25. The Defendant
argues that pictures taken of his penis show that the
skin tag on the Defendant’s penis is in a different
location from where the victim identified the skin tag
in the victim’s drawing made for the investigating
officer. The Defendant claims that the pictures of his
own penis are Brady information and the State was
wrong in not entering those photos into evidence.
The Defendant misunderstands the meaning of
Brady evidence.[] The pictures of the Defendant’s
penis, along with the pictures that the victim drew of
the Defendant’s penis were all turned over to the
defense during discovery. See attached portions of
discovery. Therefore, the State did not hide, suppress,
or fail to disclose any of the evidence to which the
Defendant refers. Furthermore, just because the victim
may have failed to identify the precise location of the
skin tag on the Defendant’s penis does not mean that
the skin tag does not exist, or that the Defendant is
innocent of the crimes. The picture of the penis in no
way absolves the Defendant of the crimes committed.
The significance of the evidence was the victim’s
knowledge of a skin tag, and not the exact location of
the skin tag on the Defendant’s penis. If the Defendant
was concerned about the penis pictures not being
admitted into evidence by the State, the defense could
have had those pictures entered. However, the
defense’s strategy was not actually to show those
pictures to the jury, but instead, to cross-examine the
investigator as explained in Argument Two, Claim 8 of
this order. Defense counsel discussed with the
investigator, during cross-examination, the drawing of
the skin tag made by the victim. Then, defense counsel
showed the picture of the Defendant’s penis to the
31

investigator, and defense counsel was able to elicit from
the investigator that there may be some discrepancy in
the explanation by the victim as to the location of the
skin tag on the Defendant’s penis, versus the actual
location of the skin tag as depicted in the photograph.
As such, defense counsel was able to present to the jury
the issue of the misidentification of the location of the
skin tag without actually entering the photo of the
penis into evidence. Therefore, no prejudice could have
occurred.
Resp. Ex. HH at 199-200. The First DCA per curiam affirmed the trial court
denial without a written opinion. Resp. Ex. LL. Upon thorough review of the
record and the applicable law, the Court finds that the state court’s decision to
deny Petitioner’s claim is neither contrary to nor an unreasonable application
of Strickland, and it is not based on an unreasonable determination of the facts
given the evidence presented to the state court. Ground Seven is due to be
denied.
h. Ground Eight
Petitioner argues his trial attorney failed to adequately argue a motion
for judgment of acquittal as to count seven – lewd and lascivious molestation.
Doc. 1 at 73-75. He raised this claim in his Rule 3.850 motion. Resp. Ex. HH at
160. The trial court denied the claim as follows:
The Defendant alleges that defense counsel did
not provide an adequate rebuttal to the State’s
argument against defense counsel’s motion for
judgment of acquittal, (JOA). Motion at 30. The State’s
response to defense counsel’s motion for JOA includes:
“And the evidence produced through the testimony of
32

[the victim] herself being 13 years of age and having
the defendant touching her genitalia in her bed would
constitute a prima facie case or prima facie showing of
lewd or lascivious molestation.” See attached Trial
Transcript at 192. The Defendant argues that after the
State responded to defense counsel’s motion for JOA as
to Count 7, stating: “defense counsel did not follow
through correcting the prosecutor’s statement which
was erroneous; as the testimony of [the victim] fails to
prove ‘in a lewd or lascivious manner’ - a requirement
of the statute.” Motion at 30.
The court in Houghton v. Bond held:
With respect to the granting of a
motion for directed verdict, such a motion
should be considered by a trial court with
extreme caution, because the granting
thereof amounts to a holding that the nonmoving party’s case is devoid of probative
evidence. Perry v. Red Wing Show Co., 597
So. 2d 821 (Fla. 3d DCA 1992). A motion for
directed verdict should not be granted
unless the trial court, after viewing the
evidence in the light most favorable to the
nonmoving party, determines that no
reasonable jury could render a verdict for
the non-moving party. Great S. Peterbilt,
Inc. v. Geiger, 616 So. 2d 1127 (Fla. 1st
DCA 1993); Miller v. City of Jacksonville,
603 So. 2d 1310 (Fla. 1st DCA 1992). When
considering a motion for directed verdict,
the court must assume that the nonmoving
party’s
evidence,
and
all
reasonable inferences therefrom, are true.
Houghton v. Bond, 680 So. 2d 514, 522 (Fla. 1st DCA
1996).
The Defendant fails to argue how the State’s case
was “devoid of probative evidence,” (Perry v. Red Wing
33

Show Co., at 821), or that “no reasonable jury could
render a verdict for” the State. Great S. Peterbilt, Inc.
v. Geiger, at 1127. Indeed, a jury did in fact find the
Defendant guilty of the crimes as charged, including
Count 7 of the Information, which the Defendant
directly challenges here. Based upon the totality of the
evidence provided by the victim this Court could not
rule in favor of the Defendant’s motion for JOA. The
Defendant fails in the instant motion to provide any
argument that [ ] could have been made by the defense
that would have resulted in the granting of the
defense’s JOA motion, especially considering the
standard as provided above for ruling on such a motion.
Resp. Ex. II at 202-03. The First DCA per curiam affirmed the trial court’s
denial without a written opinion. Resp. Ex. LL. Upon thorough review of the
record and the applicable law, the Court finds that the state court’s decision to
deny Petitioner’s claim is neither contrary to nor an unreasonable application
of Strickland, and it is not based on an unreasonable determination of the facts
given the evidence presented to the state court. The victim’s testimony
supported the trial court’s denial of Petitioner’s judgment of acquittal as to
count seven. As such, Ground Eight is due to be denied.
i. Ground Nine
Petitioner argues his trial counsel was ineffective for failing to adequately
move for a judgment of acquittal as to counts one through six – sexual battery
by person in familial or custodial authority. Doc. 1 at 77-81. Petitioner raised
this issue in his Rule 3.850 motion. Resp. Ex. HH at 83. The trial court
summarily denied the claim, finding the following in relevant part:
34

The Defendant alleges that counsel was
ineffective for failing to move for acquittal at the end of
trial. Motion at 32. The Defendant argues that he was
prejudiced because the State had failed to meet its
burden by failing to produce adequate evidence. The
Defendant declares, “the State had failed to produce
competent specific testimony from [the victim] stating
vaginal penetration or union of herself with the
Defendant; as would be required to infer guilt to the
specifically articulated language; in the time periods; of
count one for year 2007; count two for year 2008; count
three for year 2009.” Motion at 32. The Defendant
continues by claiming that “the State had failed to
produce competent specific testimony from [the victim]
stating oral penetration or union of herself with the
Defendant; as would be required to infer guilt to the
specifically articulated language; in the time periods of
count four for year 2007; count five for year 2008; count
six for year 2009.” Each and every claim is directly
refuted by the record.
First, defense counsel did move for acquittal at
the end of trial, which directly refutes the Defendant’s
claim that gives rise to the Defendant’s argument that
counsel was ineffective. The record reflects that
counsel, at the end of trial, renewed all of his previously
denied motions, including the motion for judgment of
acquittal. See attached Trial Transcript at 233-234.
Defense counsel reargued this motion as to all seven
counts. Therefore, the instant claim is meritless.
However, this Court will also review once again how
the record refutes the Defendant’s claims that the
evidence did not support the charges against him.
The Defendant claims that the evidence put on by
the State did not show that vaginal penetration had
occurred for the time periods alleged in the charging
document. The victim clearly testified, in no ambiguous
terms, that vaginal penetration occurred. See attached
Trial Transcript at 114-115. The victim then testifies
that vaginal penetration continued from the time she
35

was 14 years of age until she was 17 years of age, at
least once or twice a week and progressing to three or
four times a week. See attached Trial Transcript at
116-117. The victim was born on December 16, 1992.
This means the the victim turned 14 at the very end of
2006, and was the age of 14 for virtually all of 2007.
Simple math shows that if vaginal penetration
occurred weekly while the victim was 14 years of age,
then sexual battery must have occurred weekly
throughout the year of 2007. Thus, at age 15 the sexual
battery continued throughout the year of 2008, and at
age 16, the sexual battery continued throughout the
year of 2009. This testimony provided by the victim
directly refutes the Defendant’s claim that vaginal
penetration evidence was not produced through the
victim’s testimony for the years of 2007, 2008, and
2009.
So too does the record refute each of the
Defendant’s claims as to lack of testimony regarding
oral penetration for the years of 2007, 2008, and 2009.
The victim testifies that the oral penetration began
around the age of 14 or 15. See attached Trial
Transcript at 117. Either way, the Defendant [sic]
turned 15 in the year 2007. The Defendant [sic]
testified that these sexual acts continued until the age
of 17. See attached Trial Transcript at 117. Therefore,
as described in the previous paragraph, the years of
2007, 2008, and 2009 are specifically attested to.
Therefore, the record directly and definitively refutes
the Defendant’s claims as to Argument Twelve.
Resp. Ex. II at 203-01. The First DCA per curiam affirmed the trial court’s
denial without a written opinion. Resp. Ex. LL. Upon thorough review of the
record and the applicable law, the Court finds that the state court’s decision to
deny Petitioner’s claim is neither contrary to nor an unreasonable application
of Strickland, and it is not based on an unreasonable determination of the facts
36

given the evidence presented to the state court. The victim’s testimony
supported the trial court’s denial of Petitioner’s judgment of acquittal as to
counts one through six. As such, Ground Nine is due to be denied.
j. Ground Ten
Petitioner asserts his trial counsel was ineffective for failing to suppress
non-probative testimony from state witness J.B. Doc. 1 at 82 He also argues
counsel should have prevented Detective Dicks from testifying to a “false
statement about J.B.” witnessing a sexual act, which amounted to a Giglio9
violation because J.B. merely witnessed a “stuck zipper.” Doc. 1 at 82. Petitioner
raised this claim in his Rule 3.850 motion. Resp. Ex. HH at 72. The trial court
summarily denied the claim as follows:
The Defendant alleges that counsel was
ineffective for failing to “move to suppress the non
probative but prejudicial by conjecture testimony of
witness J.B.” Motion at 21. The Defendant argues that
“counsel had grounds to suppress J.B. as his testimony
held no competent eyewitness of a crime.” Motion at 21.
The Florida Supreme Court declared in McDuffie
v. State:
“Section 90.402, Florida Statutes
(2005), a provision within the Florida
Evidence Code, provides that all relevant
evidence is admissible except as provided
by law. ‘Relevant evidence is defined as
‘evidence tending to prove or disprove a
material fact’ [but] ... ‘[r]elevant evidence is
9

Giglio v. United States, 405 U.S. 150 (1972).
37

inadmissible if its probative value is
substantially outweighed by the danger of
unfair prejudice, confusion of issues,
misleading
the
jury,
or
needless
presentation of cumulative evidence.’
Sliney v. State, 944 So. 2d 270, 286 (Fla.
2006) (quoting §§ 90.401, 90.403, Fla.
Stat.). ‘[P]roper application of section
90.403 requires a balancing test by the trial
judge. Only when the unfair prejudice
substantially outweighs the probative
value of the evidence must the evidence be
excluded.’” Alston v. State, 723 So. 2d 148,
156 (Fla.1998).
McDuffie v. State, 970 So. 2d 312, 326-27 (Fla. 2007).
J.B. provided testimony that he saw the victim on her
knees directly in front of the Defendant. See attached
Trial Transcript at 79-80. This testimony substantiated
the testimony given by the victim in two ways. First, it
tended to prove that the victim was in fact in a position
where the Defendant could sexually batter the victim
as the victim testified by the Defendant placing his
penis inside of the victim’s mouth. Second, the
testimony substantiated the fact that the victim had
testified that her brother (J.B.) had walked into a room
and seen the victim in the circumstances as described.
See attached Trial Transcript at 120-121. Therefore,
J.B.’s testimony was “evidence tending to prove ... a
material fact.” Sliney v. State, at 286. And, the
probative value of that testimony certainly outweighed
the “danger of unfair prejudice” against the Defendant
Id. Therefore, counsel’s actions in regard to that
testimony being admitted were neither deficient nor
prejudicial.
Resp. Ex. HH at 197-98. The First DCA per curiam affirmed the trial court’s
denial without a written opinion. Resp. Ex. LL. Upon thorough review of the
record and the applicable law, the Court finds that the state court’s decision to
38

deny Petitioner’s claim is neither contrary to nor an unreasonable application
of Strickland, and it is not based on an unreasonable determination of the facts
given the evidence presented to the state court.
Further, to the extent Petitioner argues the state court failed to address
his claim that Detective Dicks’ testimony that J.B. “told [her] he did recall an
incident between or that he saw a partial of an incident between his father and
his sister” amounted to a Giglio violation, Doc. 1 at 82, that claim is also without
merit. J.B. testified he saw his father and sister in a compromising position and
that he told the detective about what he saw. Thus, Detective Dicks’ testimony
was not false, and counsel was not ineffective for failing to challenge it. Ground
Ten is due to be denied.
k. Ground Eleven
While not a picture of clarity, Petitioner appears to argue that the trial
court erred in denying his postconviction motion to disqualify the Honorable
Wesley Douglas, the trial judge who issued the orders denying his Rule 3.850
motion.10 Doc. 1 at 88. In support of that claim, Petitioner argues Judge Douglas
included false, prejudicial statements in his orders of denial; and Petitioner
points to numerous statements and findings in the orders and attempts to

In 2015, the trial judge who presided over Petitioner’s trial and
sentencing, the Honorable Paul S. Bryan, recused himself from Petitioner’s case
and any matter in which Petitioner is involved, and Judge Douglas was
assigned to the case.
10

39

refute them with additional facts and his own version of events. Id.
About four months after Judge Douglas, on remand, entered his second
order denying ground two of Petitioner’s Rule 3.850 motion, Petitioner filed a
pro se motion to disqualify Judge Douglas based on “false statements in a
judicial rendition within the case, in two denial orders.” Resp. Ex. EE at 623.
The trial court denied the motion to disqualify as follows:
In the instant motion, the Defendant seeks to
have the undersigned disqualified from presiding over
the Defendant’s criminal case. A motion for
disqualification of a trial judge is cognizable pursuant
to Florida Rule of Judicial Administration 2.330. Rule
2.330 provides that “[a] motion to disqualify shall be
filed within a reasonable time not to exceed 10 days
after discovery of the facts constituting the grounds for
the motion and shall be promptly presented to the court
for an immediate ruling.” FL ST J ADMIN Rule
2.330(e).
The Defendant’s claim for disqualification cites
two orders entered by the undersigned denying the
Defendant’s “Amended Motion for Post Conviction
Relief.” The Defendant claims that each denial order
contained false statements and that the entrance of
these denial orders has created “objective fear of unfair
judicial actions … that constitute felony violations in
the State of Florida...” Motion at 1.
The two denial orders that the Defendant
references are the “Order Denying Amended Motion for
Postconviction Relief” and the “Order Denying
Argument Two of the Defendant’s Amended Motion for
Postconviction Relief,” entered by this Court on July 13,
2015, and May 3, 2016, respectively. As such, the
Defendant’s instant motion for disqualification, filed on
September 23, 2016, is untimely as it was filed well
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beyond the 10-day limit for filing a motion for
disqualification based upon the entrance of these
orders.
Therefore, the instant motion must be denied.
Wherefore, it is ORDERED:
The “Defendant’s Demand Motion for Judge
Recusal due to Judicial Actions Invoking Chapter 18,
United States Code, Section 242, Documenting False
Statements in a Judicial Rendition within the Case, in
2 Denial Orders” is DENIED as untimely.
Resp. Ex. EE at 631. Petitioner appealed the trial court’s denial, and the First
DCA combined the appeal with Petitioner’s pending appeal of the trial court’s
second order denying ground two of Petitioner’s Rule 3.850 motion. Id. at 638.
The First DCA per curiam affirmed the trial court’s order denying the motion
to disqualify without a written opinion. Resp. Ex. HHH.
To the extent Petitioner contends that the state court erred in finding
that his motion to disqualify was untimely, such allegation is purely an issue of
state law and not cognizable on federal habeas review. Indeed, a state’s
interpretation of its own laws or rules provides no basis for federal habeas relief,
as no federal constitutional question is raised. Carrizales v. Wainwright, 699
F.2d 1053, 1055 (11th Cir. 1983). Nevertheless, even if this claim were properly
before the Court, it is without merit because the state court’s rejection of
Petitioner’s motion to disqualify was not contrary to or an unreasonable
application of clearly established federal law. And it was not based on an
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unreasonable interpretation of the facts in light of the evidence presented in the
state court proceedings. Ground Eleven is due to be denied.
l. Ground Twelve
Petitioner contends his trial attorney was ineffective for failing to object
to 35 allegedly improper statements the prosecutor made during opening and
closing arguments. Doc. 1 at 97. Petitioner raised this claim as ground two of
his Rule 3.850 motion. Resp. Ex. HH at 57-64. The trial court summarily denied
this claim, along with Petitioner’s other fifteen grounds for relief. Id. at 190-94.
However, as mentioned, the First DCA reversed and remanded the trial court’s
initial denial of this claim, finding the trial court “may either grant an
evidentiary hearing, or enter summary denial a second time and attach portions
of the record that conclusively refute [Petitioner’s] allegations.” Resp. Ex. LL.
In compliance with the First DCA’s directive, the trial court issued a
second order summarily denying ground two. Resp. Ex. YY. The trial court
found the following, in relevant part:
In the instant motion, the Defendant cites to
numerous portions of the trial transcript alleging that
each citation reveals a statement made by the
prosecutor that constitutes an inappropriate statement
that should have been objected to by his defense
counsel. . . . [T]he Defendant’s claim that counsel was
ineffective for failing to object to the plethora of
prosecutorial statements cited to in the instant motion
is without legal merit as not one single prosecutorial
statement cited by the Defendant in Argument Two of
the instant motion was improper.
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All of the statements made by the prosecution
that constitute the alleged misconduct were in fact
statements made by the State. Also, the record
substantiates the claim that counsel did not object to
these statements. However, the statements made by
the prosecution were not inadmissible or otherwise
inappropriate statements. The Defendant’s underlying
claim is that counsel should have objected to certain
statements made by the prosecution in opening
statements and closing arguments because the
evidence and testimony on the record did not
substantiate the prosecution’s statements. This claim
is directly refuted by the record as each and every
statement made by the prosecution that the Defendant
challenges is in fact substantiated by the evidence and
testimony on the record as this Order discusses; and
the portions of the record are attached to substantiate
each claim made by the prosecution. Thus every factual
claim made by the Defendant is refuted. Additionally,
the Defendant includes a few legal arguments as well
related to some arguments made by the prosecutor.
Each one of these claims is addressed as well and
refuted as being without ·legal merit. “We have
previously explained that counsel cannot be deemed
ineffective for failing to object to a fair comment which
is based on the evidence presented during the trial.”
Valentine v. State, 98 So. 3d 44, 55 (Fla. 2012).
Assuming, arguendo, that somehow one or more
of the statements cited to is deemed legally or factually
inappropriate, this Order explains that the Defendant
cannot demonstrate a prejudice that, but for the alleged
misstatement, the “result of the proceeding would in all
probability be different; that is, he has not
demonstrated a probability sufficient to undermine our
confidence in the outcome” of the jury trial given the
Strickland standard, because of the totality of the
evidence against the Defendant. See Simmons v. State,
105 So. 3d 475, 490 (Fla. 2012). All of the evidence and
law against the Defendant refute both the claims of
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deficiency and prejudice in the instant motion as
discussed below in great detail.
Resp. Ex. YY. The trial court then thoroughly addressed each alleged
impermissible prosecutorial statement in the confines of the two-part
Strickland standard.11 Id. The First DCA per curiam affirmed the trial court’s
second summary denial without a written opinion. Resp. Ex. BBB.
To the extent that the First DCA affirmed the trial court’s denial on the
merits, the Court will address the claim in accordance with the deferential
standard for federal court review of state court adjudications. A reviewing court
must evaluate allegedly improper comments in the context of both the
prosecutor’s entire argument and the trial as a whole, because “[c]laims of
prosecutorial misconduct are fact-specific inquiries which must be conducted
against the backdrop of the entire record.” United States v. Hall, 47 F.3d 1091,
1098 (11th Cir.1995); accord United States v. Young, 470 U.S. 1, 11 (1985) (“[A]
criminal conviction is not to be lightly overturned on the basis of a prosecutor’s
comments standing alone, for the statements or conduct must be viewed in
context; only by doing so can it be determined whether the prosecutor’s conduct
affected the fairness of the trial.”).
After reviewing the prosecutor’s arguments in context, the Court finds

For the sake of brevity and judicial economy, the Court declines to quote
the trial court’s fifty-page order as it pertains to each individual statement and
instead takes judicial notice of the trial court’s findings.
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44

that the prosecutor’s comments made during opening statements and closing
arguments were not improper, but rather were a summary of the evidence and
a recitation of the reasonable doubt standard. Resp. Ex. F at 26-30, 240-49, 26067. As such, counsel was not deficient for failing to object. Nevertheless, the
state presented an ample amount of evidence that Petitioner committed these
offenses, and thus, he cannot demonstrate that but for counsel’s alleged
deficiency, the outcome of his case would have been different.
Accordingly, upon review of the record, this Court finds that the state
court’s adjudication of this claim 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 in light
of the evidence presented in the state court proceedings. Ground Twelve is due
to be denied.
Accordingly, it is
ORDERED AND ADJUDGED:
1.

The Petition (Doc. 1) is DENIED and this case is DISMISSED

WITH PREJUDICE.
2.

The Clerk of Court shall enter judgment accordingly, terminate

any pending motions, and close this case.
3.

If Petitioner appeals this Order, the Court denies a certificate of

appealability. Because the Court has determined that a certificate of
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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.12
DONE AND ORDERED at Jacksonville, Florida, this 13th day of
October, 2020.

TIMOTHY J. CORRIGAN
United States District Judge

Jax-7
C:

Rodger N. Butler, #12252
Jennifer J. Moore, Esq.

The Court should issue a certificate of appealability only if the
Petitioner makes “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). To make this substantial showing, 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)). Here, after consideration of the record
as a whole, the Court will deny a certificate of appealability.
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