Gibbs v. Secretary, Florida Department of Corrections et al
Filing
43
ORDER denying the Petition and dismissing case with prejudice; directions to the Clerk. Signed by Judge Timothy J. Corrigan on 9/30/2020. (JND)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
LARRY ALONZO GIBBS, JR.,
Petitioner,
v.
Case No. 3:17-cv-766-J-32JBT
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 (Nassau County, Florida) judgment of
conviction for three counts of capital sexual battery and one count of lewd and
lascivious molestation of a child less than 12 years of age, by a person 18 years
of age or older. He has been adjudicated as a sexual predator and is currently
serving a life term of incarceration. Id. Respondents have responded. See Doc.
20; Response.1 Petitioner filed a Reply. See Doc. 40. This case is ripe 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 in order for the
state court’s decision to qualify as an adjudication on the merits. See Harrington
v. Richter, 562 U.S. 86, 100 (2011). Where 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
Attached to the Response are numerous exhibits. See Doc. 20-1. The
Court cites to the exhibits as “Resp. Ex.”
1
2
same reasoning. But the State may rebut the
presumption by showing that the unexplained
affirmance relied or most likely did rely on different
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
3
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
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. Exhaustion and Procedural Default
There are prerequisites to federal habeas review. Before bringing a § 2254
habeas action in federal court, a petitioner must exhaust all state court
remedies that are available for challenging his state conviction. See 28 U.S.C.
§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly present[]”
every issue raised in his federal petition to the state’s highest court, either on
direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346, 351
(1989) (emphasis omitted). Thus, to properly exhaust a claim, “state prisoners
must give the state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State’s established appellate
review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Pope
v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel applies to the
state collateral review process as well as the direct appeal process.”).
In addressing exhaustion, the United States Supreme Court explained:
4
Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, 28
U.S.C. § 2254(b)(1), thereby giving the State the
“‘opportunity to pass upon and correct’ alleged
violations of its prisoners’ federal rights.’” Duncan v.
Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d
865 (1995) (per curiam) (quoting Picard v. Connor, 404
U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)). To
provide the State with the necessary “opportunity,” the
prisoner must “fairly present” his claim in each
appropriate state court (including a state supreme
court with powers of discretionary review), thereby
alerting that court to the federal nature of the claim.
Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan
v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144
L.Ed.2d 1 (1999).
Baldwin v. Reese, 541 U.S. 27, 29 (2004).
A state prisoner’s failure to properly exhaust available state remedies
results in a procedural default which raises a potential bar to federal habeas
review. The United States Supreme Court has explained the doctrine of
procedural default as follows:
Federal habeas courts reviewing the constitutionality
of a state prisoner’s conviction and sentence are guided
by rules designed to ensure that state-court judgments
are accorded the finality and respect necessary to
preserve the integrity of legal proceedings within our
system of federalism. These rules include the doctrine
of procedural default, under which a federal court will
not review the merits of claims, including
constitutional claims, that a state court declined to
hear because the prisoner failed to abide by a state
procedural rule. See, e.g., Coleman,[2] supra, at 747–
2
Coleman v. Thompson, 501 U.S. 722 (1991).
5
748, 111 S. Ct. 2546; Sykes,[3] 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). Thus, procedural defaults may be
excused under certain circumstances. Notwithstanding that a claim has been
procedurally defaulted, a federal court may still consider the claim if a state
habeas petitioner can show either (1) cause for and actual prejudice from the
default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d
1144, 1157 (11th Cir. 2010). In order for a petitioner to establish cause and
prejudice,
the procedural default “must result from some objective
factor external to the defense that prevented [him] from
raising the claim and which cannot be fairly
attributable to his own conduct.” McCoy v. Newsome,
953 F.2d 1252, 1258 (11th Cir. 1992) (quoting Carrier,
477 U.S. at 488, 106 S. Ct. 2639).[4] Under the prejudice
prong, [a petitioner] must show that “the errors at trial
3
Wainwright v. Sykes, 433 U.S. 72 (1977).
4
Murray v. Carrier, 477 U.S. 478 (1986).
6
actually and substantially disadvantaged his defense
so that he was denied fundamental fairness.” Id. at
1261 (quoting Carrier, 477 U.S. at 494, 106 S. Ct. 2639).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).
In the absence of a showing of cause and prejudice, a petitioner may
receive consideration on the merits of a procedurally defaulted claim if the
petitioner can establish that a fundamental miscarriage of justice, the
continued incarceration of one who is actually innocent, otherwise would result.
The Eleventh Circuit has explained:
[I]f a petitioner cannot show cause and prejudice, there
remains yet another avenue for him to receive
consideration on the merits of his procedurally
defaulted claim. “[I]n an extraordinary case, where a
constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal
habeas court may grant the writ even in the absence of
a showing of cause for the procedural default.” Carrier,
477 U.S. at 496, 106 S. Ct. at 2649. “This exception is
exceedingly narrow in scope,” however, and requires
proof of actual innocence, not just legal innocence.
Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.
2001).
Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that it
is more likely than not that no reasonable juror would have convicted him’ of
the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.
2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be
credible,’ a claim of actual innocence must be based on reliable evidence not
presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting
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Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,
allegations of actual innocence are ultimately summarily rejected. Schlup, 513
U.S. at 324.
C. Ineffective Assistance of 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.
Notably, 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 show a Sixth Amendment violation, “a court need not address the
performance prong if the petitioner cannot meet the prejudice prong, and viceversa.” Id. (citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As
8
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
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).
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III.
Evidence at Trial
Petitioner raises eighteen grounds for relief. To add context to these
claims, the Court summarizes the evidence produced at trial. The victim, C.S.,
was 14 years old at the time of trial. Resp. Ex. F at 163. She testified Petitioner
was her stepfather and the only father figure she has ever known. Id. C.S.
explained she and her little sisters lived with Petitioner and their mother,
beginning when C.S. was the age of 5 until October 2011, when she and her
little sisters moved in with her grandmother and she stopped having contact
with Petitioner and her mother. Id. at 165. Before moving in with her
grandmother, C.S. stated they moved around a lot between Duval County,
Florida, and Nassau County, Florida. Id.
C.S. explained that when she was living with Petitioner, he sexually
abused her four times. Id. at 168. C.S. then described each of the four instances
of abuse. Id. at 172-82. She explained the first time occurred when she was 9
years old living in Jacksonville. Id. at 175. She explained she was asleep when
Petitioner woke her up by pulling down her sleeping pants. Id. at 176. She
stated Petitioner was not wearing pants and he touched his penis to her vagina,
but she could not recall if there was penetration during that incident. Id. at 176,
226. C.S. stated that the other three occurrences of abuse occurred in Nassau
County. Id. Those three occurrences happened in very similar fashions.
Petitioner abused her by pulling down C.S.’s pants and his own pants, placing
10
his penis on C.S.’s legs and her vaginal area and would then insert his penis
into her vagina and she would experience pain while he was abusing her. Id. at
172-86. C.S. testified she was 10 years old the second time he abused her; she
was between the ages of 10 and 11 the third time he abused her; and she was
11 years old the fourth time he abused her. Id. She also stated that Petitioner
initiated the second occurrence of sexual abuse by “putting his hands on [her]
vaginal area” and then “fiddled” her genitals. Id. at 188. C.S. stated that after
each occurrence, Petitioner told C.S. not to tell anyone because “it would ruin
the family.” Id. at 168. C.S. testified that no one, other than Petitioner, had ever
placed their penis in or on her vagina. Id. at 190. She also explained that after
Petitioner molested her, she began to suffer from herpes outbreaks. Id. at 190.
She first noticed red bumps on her vaginal area when she was 9 or 10 years old,
after the first time Petitioner abused her. Id. at 190-91. She testified that she
now takes a daily prescription for the herpes virus. Id. at 192.
In June 2012, when she knew she was safely away from Petitioner and
living with her grandmother, C.S. finally told her grandmother and her aunt
about the abuse. Id. C.S. explained that when she told her grandmother, her
grandmother immediately called the Department of Children and Families. Id.
at 171. C.S. was then interviewed by someone from DCF and Child Protection
Team services. Id. at 172. She also underwent a physical exam by a nurse with
the CPT and a follow up exam with her regular practitioner. Id. at 212. On
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cross-examination, C.S. admitted to giving inconsistent statements to her
grandmother and Lori Armstrong, a CPT member, that she could not remember
if Petitioner’s penis penetrated her. Id. at 204, 226, 227.
Karen McQueen testified she is the office manager at University of
Florida, Dunn Avenue Family Practice, a primary care facility. Id. at 248.
McQueen explained one of her responsibilities is to maintain and access medical
records generated by the doctors and treating nurses at the facility, and that
the records are kept in the course of her regularly conducted business activity.
Id. at 249. She asserted she reviewed the facility’s medical records for Petitioner
and C.S. Id. One of the records for C.S. was a report dated October 1, 2012,
showing C.S. underwent an IGG antibodies test for the herpes simplex type 1
and type 2. Id. at 269-70. McQueen testified that the facility had no medical
records suggesting Petitioner had been tested for the herpes virus. Id. at 250.
Kristi Green testified she is an advanced registered nurse practitioner
employed with the CPT. Id. at 274. Green explained she has testified as an
expert witness in the field of child abuse approximately 12 times in Nassau,
Duval, and Clay counties. Id. at 277-78. Green asserted she conducts sexual
assault exams and explained the most important evidence to consider when
conducting the exam is the history given by the child. Id. at 279. According to
Green, the child’s medical history and statements are the most important
information because a physical exam will be conducted only if the child reports
12
some sort of abuse; and even if abuse is reported, physical evidence of the sexual
assault is not present or visible 96% of the time. Id. at 280-81.
Green stated she examined C.S. on July 2, 2012, and at the time, C.S. was
12 years old. Id. at 281. Green explained that before her exam, Lori Armstrong,
another CPT employee, met with C.S. and obtained a statement of her history.
Id. Green reviewed and relied on that historical statement when conducting her
exam and noted that C.S. reported penile/vaginal and digital penetration. Id. at
282. Green then conducted a physical sexual assault exam of C.S. and first made
the following conclusion: “sexual assault, abuse by history, and the physical
findings are clear evidence of blunt force or penetrating trauma” based on the
partially healed transections to C.S.’s hymen. Id. at 290. However, after her
supervising physician reviewed her report and corresponding photographs,
Green determined the “partially healed transections” could also be a “normal
variant” of the hymen; so she altered her conclusion to the following: “physical
findings are consistent with the history and neither confirm nor negate
allegations of sexual assault or sexual abuse.” Id. at 291.
Green further testified that C.S. advised she had a history of recurrent,
intermittent red bumps on her genital area with painful urination. Id. at 292.
Based on C.S.’s description and medical complaint, Green thought it was
medically necessary to order a herpes IGG antibody test, which checks a
patient’s blood for the antibodies associated with both herpes simplex 1 and 2.
13
Id. at 292-93. Green explained herpes 1 is the strain of the virus commonly
associated with mouth cold sores while herpes 2 is linked to genital herpes;
however, “both types can be found in either area”; in other words, type 1 herpes
can be found on your genital area and type 2 can be found on your oral area. Id.
at 293. She also testified that the IGG antibodies does not distinguish between
the two types of herpes strains, but merely shows whether an individual has
encountered either strain at some point in their life. Id. Green testified that
C.S.’s herpes IGG antibody report revealed C.S. was positive for the herpes
antibodies. Id. at 300. The state then asked Green to look at C.S.’s October 2012
IGG antibody test results from C.S.’s primary care physician, which were
admitted into evidence through McQueen’s earlier testimony. Id. at 301. Green
explained that report also indicated a positive test result. Id.
Dr. Bruce McIntosh, Green’s supervisor and fellow CPT employee,
testified he reviewed Green’s sexual abuse report and photographs related to
C.S.’s examination and he could not definitively say whether C.S. was sexually
abused by penetration. Resp. Ex. G at 361. However, McIntosh explained that
a lack of physical evidence or injury does not resolve the issue because such
evidence is rarely visible. Id. at 359-60. He then cited several medical studies
showing that only 6 to 14% of sexual abuse victims have visible physical signs
of such abuse. Id. McIntosh also explained that herpes type 1 can be found in
the genital or mouth area and can be transmitted either sexually or non14
sexually by innocent contact. Id. at 363. According to McIntosh, if a 12-year-old
child who provided a history of sexual abuse was also complaining of red bumps
on her genitals, he would recommend she see her primary physician during an
outbreak because that is the only absolute way to diagnose the ailment;
otherwise, he would suggest an IGG antibody blood test. Id. at 364. He further
confirmed that if the child’s only sexual contact was with the perpetrator and
she had a positive IGG test, it is likely she contracted the herpes virus from the
sexual assault. Id. at 365.
At the request of law enforcement, Petitioner submitted a blood sample
before trial. According to Stephanie Burks, a LabCorp employee who conducted
an IGG herpes antibody test on Petitioner’s sample, Petitioner’s IGG test
results were 42.5, which is a high positive result for the presence of antibodies
associated with herpes 1 or 2. Resp. Ex. G at 339. Douglas Hernandez, another
LabCorp employee, testified that in March 2013, he conducted an IGG specific
antibody test using Petitioner’s blood sample to determine which specific strain
of herpes antibodies is present in Petitioner’s blood. Id. at 341-42. Hernandez
explained Petitioner’s sample came back positive for herpes 1 and negative for
herpes 2. Id. at 343.
Detective Jeff Stull testified he was the lead detective on Petitioner’s case.
Id. at 384. Stull explained he interviewed Petitioner on August 1, 2012,
15
beginning the interrogation by reading Petitioner his Miranda5 rights. Id. at
386. A video recording of Petitioner’s interview with Stull was then played for
the jury. Id. at 391-403; Resp. Ex. H at 413-24. During the interview, Petitioner
initially adamantly denied ever touching C.S. inappropriately, but admitted she
and his other children would sleep in the same bed with him on occasion. Resp.
Ex. G at 401; Resp. Ex. H at 414-15. However, when Stull asked Petitioner how
C.S. contracted herpes, Stull explained that Petitioner’s demeanor and story
changed. Resp. Ex. G at 403. Petitioner then admitted to inappropriate contact
with C.S. but maintained that it was C.S. who initiated the encounter.
Petitioner told Stull that while C.S. was sleeping in the bed with him, she woke
him up by touching him and then climbed on top of him, began “grinding,” and
his penis may have touched her vagina before he told her to stop. Resp. Ex. H
at 419-24. Petitioner further told Stull that C.S. attempted this act more than
one time. Id. at 425. Petitioner, however, denied any occurrence of penetration.
Lori Armstrong testified that she conducted a forensic interview with C.S.
after she reported the abuse. Id. at 439. Over defense counsel’s objection,
Armstrong testified to the statements C.S. made to her regarding the extent of
the abuse and that C.S. described penetration had occurred. Id. at 442-45.
Dr. Kevin Peterson testified on behalf of the defense that he is a family
5
Miranda v. Arizona, 384 U.S. 436 (1966).
16
physician who saw C.S. in August 2012. Id. at 437. He stated C.S.’s guardian
suspected a herpes outbreak, so Peterson conducted a swab culture that
revealed a yeast infection. Id. However, Peterson explained he did not request
a herpes antibody test. Id. at 500.
Petitioner also called as a defense witness April McLaughlin, another
CPT employee, who testified that she investigated C.S.’s family in March 2010
regarding the children missing school. Id. at 506. She explained that during her
investigation, C.S. did not report any instances of sexual abuse; however,
McLaughlin admitted sexual abuse was not the purpose of her investigation.
Id. at 501. DCF employee Wanda Nichols testified that she investigated C.S.’s
family in August and September 2011 regarding the family’s poor living
conditions and lack of food. Id. at 511-13. During her investigation, C.S. did not
report any incidents of sexual abuse. Id.
IV.
Petitioner’s Claims and Analysis
A. Ground One
Petitioner argues the trial court erred in allowing the state to present
evidence and testimony about C.S. and Petitioner undergoing testing for the
17
herpes virus and the results of those tests.6 Doc. 1 at 5. Petitioner, with help
from appellate counsel, raised this claim as “Issue I” of his initial brief on direct
appeal and argued three points in support of this claim. Resp. Ex. K at 24-29.
First, Petitioner argued that this evidence was irrelevant and highly prejudicial
because the type of herpes for which Petitioner tested positive for (herpes 1)
was not the same type for which the victim’s history indicated (herpes 2). Resp.
Ex. K at 24. Next, he asserted that any evidence of the IGG test performed on
C.S. was inadmissible because the state presented no witness from which the
trial court could determine the reliability of the IGG test in accordance with
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Finally,
Petitioner argued testimony from witness Kristi Green that C.S. tested positive
for the herpes antibodies violated his confrontation rights under Crawford v.
Washington, 541 U.S. 36 (2004), because “she did not conduct the test and
therefore her testimony was impermissible hearsay.” Resp. Ex. K at 29.
The state filed an answer brief addressing each argument. It argued
evidence that Petitioner is a carrier for herpes type 1 and that C.S. is a carrier
for the herpes antibody is relevant, because even if they both carried herpes
While the allegations of the Petition are vague, a reading of the
Response and Petitioner’s Reply clarify that Grounds One through Six are the
same issues as those alleged during Petitioner’s direct appeal. For ease of
reading, the Court directly summarizes these grounds by using the allegations
in Petitioner’s initial brief on appeal rather than quoting the Petition.
6
18
type 1, such strain can be transmitted through sexual contact. Resp. Ex. L at
21. As to Petitioner’s argument that testimony regarding the IGG test failed to
comply with the requirements of Daubert, the state outlined a three-part test
by which to determine whether expert testimony is admissible: (1) the expert is
qualified to testify competently regarding the matters he intends to address; (2)
the methodology by which the expert reaches his conclusions is sufficiently
reliable as determined by the sort of inquiry mandated in Daubert; and (3) the
testimony assists the trier of fact, through the application of scientific,
technical, or specialized expertise, to understand the evidence or to determine
a fact in issue. Id. It then argued that Green satisfied this test because she is a
board-certified nurse practitioner who had seen approximately 300 to 400
victims of child sexual abuse. It noted Green’s explanation that while C.S. was
not experiencing physical manifestations of the virus when she examined her,
the medical history C.S. provided prompted Green to order the IGG test. Green
considered the IGG test to be medically necessary and is ordinarily used to
diagnose and treat the herpes virus. According to Green, it is rare for the IGG
test to produce a false positive and while the test does not differentiate based
on the specific strain of the virus, the IGG test would still be performed for
either strain because treatment for both types of the virus is the same. To that
end, the state also argued that the existence of an IGG specific antibody test
19
does not prove that the general IGG test is unreliable, but merely goes to the
weight of the evidence.
Finally, as to Petitioner’s claim that admission of the medical reports and
IGG tests violated his confrontation rights under Crawford, the state argued
that the reports were not prepared in anticipation of trial, but were instead
found to have been prepared for the purpose of medical diagnosis and
treatment. Resp. Ex. L at 25. Thus, the reports were non-testimonial and did
not implicate Petitioner’s rights under Crawford. Id. In any event, the state
argued that even assuming Petitioner was correct in this claim, the
presentation of these IGG results was harmless. Id. at 26. It explained that the
herpes diagnosis “allowed for argument asserting contrary interpretations of
the evidence, some of which was highly favorable to [Petitioner]”; and Petitioner
actively discredited Green’s testimony based on her supervisor’s disagreement
with her findings. However, the state noted that the state’s other evidence
showing Petitioner committed the crime was strong, including Petitioner’s video
recorded confession. Id. The First District Court of Appeal per curiam affirmed
Petitioner’s judgment and sentence without a written opinion. Resp. Ex. M.
Respondents contend that this claim is unexhausted because Petitioner
only argued it as an issue of state law in state court. Resp. at 42. For purposes
of this Order, the Court assumes this claim is exhausted and otherwise
cognizable on federal habeas review. Nevertheless, this claim lacks merit
20
because the First DCA’s decision is entitled to AEDPA deference. Petitioner’s
own statement to police during his interrogation and C.S.’s testimony that
Petitioner abused her while she was between the ages of 9 and 11 were enough
to support the jury’s verdict. Thus, the state court’s evidentiary ruling did not
“‘so infuse[] the trial with unfairness as to deny due process of law.’” Smith v.
Jarriel, 429 F. App’x 936, 937 (11th Cir. 2011) (quoting Felker v. Turpin, 83
F.3d 1303, 1311-12 (11th Cir. 1996)). In consideration of the foregoing, the
Court concludes that the state appellate court’s summary adjudication of this
claim was neither contrary to, nor an unreasonable application of, clearly
established federal law. Nor was the state appellate court’s adjudication based
on an unreasonable determination of the facts given the evidence presented in
the state court proceedings. As such, Ground One is due to be denied.
B. Ground Two
Petitioner argues the trial court erred in allowing Armstrong to testify to
hearsay statements that C.S. made to her during their CPT interview. Doc. 1
at 6. Petitioner raised this claim as “Issue II” during his direct appeal. Resp.
Ex. K at 30. He argued that this testimony was inadmissible because the state
(1) “never filed a notice of its intent to introduce child hearsay statements under
Section 90.803(23), Florida Statutes”; and (2) the trial court made no specific
findings of reliability and trustworthiness as required by section 90.803(23),
and State v. Townsend, 635 So. 2d 949 (Fla. 1994). Resp. Ex. K at 30.
21
The state filed an answer brief arguing, inter alia, that the state did not
file a notice of intent to rely on child hearsay because the victim was 12 years
of age when she reported the sexual abuse; the testimony was being offered
under the “rule of completeness”; and any error in admission of this testimony
was harmless, because C.S. also testified about her statements to Armstrong
and C.S. was subject to extensive cross-examination. Resp. Ex. L at 28. The
First DCA per curiam affirmed Petitioner’s judgment and sentence without a
written opinion. Resp. Ex. M.
Respondents again contend that this claim is unexhausted because
Petitioner only argued it as an issue of state law in state court. Resp. at 42. For
purposes of this Order, the Court assumes this claim is exhausted and
otherwise cognizable on federal habeas review. Yet, it is without merit because
the First DCA adjudication of this claim is entitled to deference. Petitioner’s
trial attorney questioned C.S. on cross-examination about the alleged
inconsistent statements she made to Armstrong. Resp. Ex. F at 204, 226-27.
Further, considering Petitioner’s recorded police interrogation and the other
evidence of his culpability, Petitioner cannot show that Armstrong’s testimony
or the state court’s adjudication of this claim “‘so infuse[d] the trial with
unfairness as to deny due process of law.’” Smith, 429 F. App’x at 937 (quoting
Felker, 83 F.3d at 1311-12). The state court’s conclusion was not contrary to
clearly established federal law and did not involve an unreasonable application
22
of clearly established federal law. Nor was the state court’s adjudication based
on an unreasonable determination of the facts given the evidence presented in
the state court proceedings. Accordingly, Ground Two is due to be denied.
C. Ground Three
Petitioner asserts the trial court erred in denying Petitioner’s motion for
judgment of acquittal as to count four of the Information, arguing that the
evidence was insufficient to prove that C.S. was under 12 years old at the time
he committed that charge of capital sexual battery. Doc. 1 at 7.
At the close of the state’s case, trial counsel moved for a judgment of
acquittal on count four, arguing that the statement of particulars for that count
alleged Petitioner committed the sexual battery between January 1, 2010, and
October 10, 2011; which was the last day before C.S. turned 12. Resp. Ex. H at
462. Trial counsel further argued that C.S. testified she could not remember if
the last sexual assault occurred before she turned 12, and C.S.’s school records
show that C.S. moved back to Jacksonville on October 14, 2011, which is after
she turned 12. Id. at 463. In response, the state argued that C.S. told Armstrong
that the abuse occurred while she was between the ages of 9 and 11, and that if
trial counsel wanted to argue that the last capital offense occurred during the
four days between her twelfth birthday and the day she moved back to
Jacksonville, that would be a decision the jury could make. Id. at 466. The trial
23
court then denied Petitioner’s motion for judgment of acquittal as to count four.
Id. at 470.
On direct appeal, with the benefit of counsel, Petitioner raised this claim
as “Issue III.” Resp. Ex. K at 35-36. In its answer brief, the state pointed to the
following trial testimony from C.S. about count four:
Q:
[W]hen your mother sent you to live with
your grandmother . . . that was October of 2011.
A:
Yes, ma’am.
Q:
And do you know how old you turned in
October of 2011?
A:
11.
Q:
In October of 2011, you would have been 11
and you would have turned 12?
A:
12.
Q:
Okay. So, were you younger than 12 when
the defendant abused you the last time?
A:
Yes, ma’am.
Resp. Ex. L at 35; Resp. Ex. F at 185. The state again pointed to Armstrong’s
testimony that C.S. told her the last incident took place when she was 11. Resp.
Ex. H at 447. The First DCA per curiam affirmed Petitioner’s judgment and
sentence without a written opinion. Resp. Ex. M.
Respondents again contend that this claim is unexhausted because
Petitioner only argued it as an issue of state law in state court. Resp. at 42. For
24
purposes of this Order, the Court assumes this claim is exhausted and
otherwise cognizable on federal habeas review. Nevertheless, to the extent that
the First DCA affirmed the trial court’s denial of Petitioner’s motion for
judgment of acquittal on the merits, the Court will address the claim in
accordance with the deferential standard for federal court review of state court
adjudications.
When reviewing an insufficiency of the evidence claim in a habeas
petition, a federal court must determine “whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). The court must assume that the
jury resolved any evidentiary conflicts in favor of the prosecution, and the court
must defer to that resolution. Id. Here, the jury found Petitioner guilty of count
four – capital sexual battery – and in doing so, found the state proved the
following elements beyond a reasonable doubt: Petitioner was eighteen years of
age or older and committed a sexual battery upon C.S., a person less than 12
years of age. Resp. Ex. A at 123; § 794.011(2)(a), Fla. Stat. To prove “sexual
battery” the state needed to prove “oral, anal, or vaginal penetration by, or
union with, the sexual organ of another.” § 794.011(1)(h), Fla. Stat. Taken in
the light most favorable to the state, the Court finds there was sufficient
evidence to permit a rational trier of fact to find Petitioner guilty of this offense.
25
As such, upon review of the record, this Court concludes 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 Three is due to be
denied.
D. Ground Four
Petitioner argues the trial court erred in denying his request that the jury
be instructed on the lesser included offense of attempted sexual battery. Doc. 1
at 8-9. Petitioner raised this claim as “Issue IV” during his direct appeal. Resp.
Ex. K at 37-39. In its answer brief, the state argued the trial court properly
denied Petitioner’s request for this instruction because the evidence supported
a complete act of sexual battery, not an attempt. Resp. Ex. L at 39. It further
argued that attempted sexual battery is only a permissive lesser included
offense and any error in not instructing the jury on it was harmless, especially
in light of the jury’s verdict finding Petitioner guilty of capital sexual battery as
charged in the Information. Id. The First DCA per curiam affirmed Petitioner’s
judgment and sentence without a written opinion. Resp. Ex. M.
Respondents again contend that this claim is unexhausted because
Petitioner only argued it as an issue of state law in state court. Resp. at 42. For
purposes of this Order, the Court assumes this claim is exhausted and
26
otherwise cognizable on federal habeas review. Nevertheless, it is without merit
because the state court’s adjudication of this claim is entitled to deference.
Petitioner must show that the state trial court’s failure to read the
instruction so infected the entire trial that his resulting conviction violated due
process. Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (citing Cupp v. Naughten,
414 U.S. 141, 147 (1973)). The Court does not judge the allegedly erroneous
instruction “in artificial isolation,” but considers the instruction in the context
of the trial record and the jury instructions as a whole. Id. at 152 n.10 (citing
Boyd v. United States, 271 U.S. 104, 107 (1926)). Further, “[a]n omission, or an
incomplete instruction, is less likely to be prejudicial than a misstatement of
the law.” Id. at 154. Accordingly, where, as here, the alleged error is an omitted
instruction, the burden on the petitioner is “especially heavy.” Id.
The trial court instructed the jury on counts one, two, and four using the
standard jury instruction for sexual battery upon a person less than 12 years of
age. Resp. Ex. A at 130; see also Florida Standard Jury Instruction 11.1. In
doing so, it also read the instruction for the necessary lesser included offense of
battery. Id. Attempt is not a necessary lesser included offense, and the evidence
did not support the reading of the attempt instruction. During his interrogation,
Petitioner admitted his sexual organ had union with C.S.’s sexual organ. When
viewed in the context of the trial as a whole, Petitioner has not met his heavy
burden of showing that the trial court’s failure to read the attempt instruction
27
violated due process. The state court’s adjudication was neither contrary to, nor
based upon an unreasonable application of Henderson or any other clearly
established federal law. Nor is it an unreasonable determination of the facts in
light of the evidence presented in the state court proceeding. Ground Four is
due to be denied.
E. Ground Five
Petitioner argued the trial court erred in prohibiting Petitioner from
introducing evidence of C.S.’s prior sexual encounters. Doc. 1 at 9. Petitioner
raised this claim as “Issue V” during his direct appeal. Resp. Ex. K at 40.
According to Petitioner, his defense at trial was that C.S. was fabricating the
allegations against Petitioner, so he sought to introduce the testimony of
Marina Anderson to show C.S. had prior knowledge of sexual activity, because
C.S. was investigated for alleged sexual misconduct involving her sister and a
friend in 2008 and that C.S. did not disclose Petitioner’s alleged misconduct
during that investigation. Id. He also sought to introduce the testimony of Bruce
Wheeler who sexually abused C.S. during the time she was living with him. Id.
Petitioner averred this evidence would corroborate his statements to police that
C.S. initiated the contact while Petitioner was asleep. Id.
In its answer brief, the state argued that the trial court properly excluded
the testimony of Bruce Wheeler because it was not relevant to a material fact
in issue. Resp. Ex. L at 41. It asserted that “[o]nly after the victim disclosed
28
abuse by appellant and appellant was arrested, did the victim’s grandfather,
Bruce Wheeler, touch the child’s breasts. The child immediately reported this
to her grandmother, the police were notified, and Wheeler was arrested and
convicted.” Id. As to Anderson, the state argued, inter alia, that even if the trial
court erred in excluding testimony from this witness, such error was harmless
because the state presented competent and substantial evidence of Petitioner’s
guilt, and “[t]his is particularly true where [Petitioner] admitted sexual contact
with the victim.” Id. at 43. The First DCA per curiam affirmed Petitioner’s
judgment and sentence without a written opinion. Resp. Ex. M.
To the extent the First DCA adjudicated this issue on the merits, that
adjudication is entitled to deference. As to Anderson, prior to trial, trial counsel
argued she may call Anderson, a former DCF employee, as an impeachment
witness, if during her cross-examination, C.S. testified that she reported the
sexual abuse to Anderson during Anderson’s 2008 investigation into unrelated
incidents. Resp. Ex. C at 82. Trial counsel agreed with the trial court that
calling Anderson for any purpose other than impeachment would be hearsay.
Id. During trial counsel’s cross-examination of C.S., C.S. testified that she was
interviewed by multiple DCF workers during “various times over the years”
regarding her living situation, and that she never reported Petitioner’s sexual
abuse. Resp. Ex. F at 201. Since C.S. admitted she did not report Petitioner’s
abuse during prior DCF investigations, trial counsel did not need to call
29
Anderson for impeachment purposes. Further, any potential testimony from
Wheeler regarding his sexual abuse of C.S. was irrelevant because it was not
similar in nature to the abuse Petitioner committed, and Wheeler abused C.S.
after Petitioner was arrested.
As such, upon review of the record, this Court concludes 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 Five is due to
be denied.
F. Ground Six
Petitioner argues the trial court erred in allowing, over trial counsel’s
objection, McIntosh to reference medical studies, journals and treatises to
support his expert opinion that physical evidence of sexual abuse is seldom
found in alleged victims. Doc. 1 at 10. Petitioner raised this claim as “Issue VI”
during his direct appeal, asserting the medical documents impermissibly
bolstered McIntosh’s credibility and amounted to hearsay. Resp. Ex. K at 44.
In its answer brief, the state argued that McIntosh’s reference to these
medical journals and documents was not impermissible because he was merely
referencing facts and data reasonably relied upon by experts on the subject.
Resp. Ex. L at 44-45. It further asserted that any error was harmless because
30
such testimony was extremely brief, Petitioner cross-examined McIntosh about
the same publications, Petitioner used McIntosh to undermine Green’s
testimony and findings, and such testimony did not affect the verdict. Id. at 45.
Respondents again contend that this claim is unexhausted because
Petitioner only argued it as an issue of state law in state court. Resp. at 58. For
purposes of this Order, the Court assumes this claim is exhausted and
otherwise cognizable on federal habeas review. Nevertheless, it is without merit
because the state court’s adjudication is entitled to deference. Upon review of
the record as a whole and considering the totality of the evidence produced at
trial, the Court finds the state court’s adjudication was not contrary to clearly
established federal law and did not involve an unreasonable application of
clearly established federal law. Nor was the state court’s adjudication based on
an unreasonable determination of the facts in light of the evidence presented in
the state court proceedings. Ground Six is due to be denied.
G. Ground Seven
Petitioner argues his trial counsel was ineffective for failing to adequately
make a contemporaneous objection to McIntosh’s use of inadmissible learned
treatises to bolster his own credibility. Doc. 1 at 11. Petitioner raised this claim
as his only ground in his Florida Rule of Criminal Procedure 3.850 motion for
postconviction relief. Resp. Ex. O at 4. The trial court summarily denied the
claim, finding in pertinent part as follows:
31
In his Motion for Postconviction Relief the
defendant presents one ground regarding defense
counsel’s failure to object to the testimony of Dr. Bruce
McIntosh, an expert witness called by the State. In his
argument, defendant states: “This ground was raised
on the defendant’s direct appeal.” The First District
Court of Appeal per curiam affirmed. Accordingly it is
ORDERED AND ADJUDGED:
1. The motion is denied.
Id. at 10. The First DCA per curiam affirmed the trial court’s summary denial
without a written opinion. Resp. Ex. P. To the extent that the First DCA
affirmed the trial court’s denial on the merits, the Court will address this claim
in accordance with the deferential standard for federal court review of state
court adjudications.
Considering the weight of the evidence against Petitioner, even in the
absence of any testimony from McIntosh, Petitioner cannot demonstrate that
but for trial counsel’s alleged errors, the outcome of his trial would have been
different. As previously noted in Ground Six, the parties thoroughly addressed
McIntosh’s use of these medical documents during his testimony and the First
DCA per curiam affirmed Petitioner’s challenge to it on direct appeal. Thus,
upon thorough review of the record and the applicable law, the Court concludes
that the state court’s decision to deny Petitioner’s claim was neither contrary to
nor an unreasonable application of Strickland, and it is not based on an
32
unreasonable determination of the facts in light of the evidence presented to
the state court. Ground Seven is due to be denied.
Grounds Eight through Seventeen
In the Petition, Petitioner concedes he did not exhaust his state court
remedies for Grounds Eight through Seventeen.7 Doc. 1 at 13-37. However, he
contends that his failure to exhaust these claims should be excused under
Martinez because he was not represented by counsel during his initial
postconviction proceedings. Reply at 21. Respondents contend Petitioner has
failed to demonstrate that these defaulted claims are substantial, thus, they
argue he cannot rely on Martinez to overcome the procedural defaults. See
generally Resp. at 65-106.
Under Martinez, Petitioner must demonstrate more than the general
assertion that the trial court did not appoint counsel in the initial-review
collateral proceeding. 566 U.S. at 14. Petitioner 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
Despite conceding in his Petition that these claims are unexhausted,
Doc. 1 at 13-37, in his Reply, Petitioner asserts he raised these claims in state
court through a “Motion for Leave to File a Second Motion for Postconviction
Relief”; the trial court and appellate court denied that motion; and Respondents
failed to include those postconviction filings in their exhibits. Reply at 20-21.
Nevertheless, even assuming Petitioner raised these claims in state court
through a successive Rule 3.850 motion, he is not entitled to federal habeas
relief because these claims are unsubstantial and without merit.
7
33
merit.” Id. (citations omitted); see also Lambrix v. Sec’y Fla. Dept. of Corr., 851
F.3d 1158, 1164 (11th Cir. 2017). Conversely, his claim is “insubstantial” if “it
does not have any merit or . . . is wholly without factual support.” Id. at 16. For
the reasons that follow, the Court finds that even if Petitioner demonstrates
that his lack of postconviction counsel caused his procedural default, he cannot
demonstrate that his underlying ineffective-assistance-of-counsel claims are
substantial in order to establish cause and prejudice under Martinez.
H. Ground Eight
Petitioner argues his trial counsel was ineffective for failing to
“adequately investigate and conduct any meaningful adversarial testing
process against the state’s case . . . .” Doc. 1 at 13. According to Petitioner, he
informed counsel prior to trial that his medical records demonstrated “he tested
positive for Herpes HSV [oral] antibodies; but was not diagnosed as having the
HSV-active virus itself; and that, he was not diagnosed as having Herpes HSV2 [genital] antibodies or virus,” which is the type that C.S. supposedly
contracted. Id. at 14. He claims that had counsel presented evidence of
Petitioner’s specific strain of herpes during the suppression hearing, the trial
court would have suppressed any evidence of herpes test results and he would
have been acquitted at trial. Id.
As Respondents adequately note, “Petitioner’s claim is predicated on a
false premise that oral herpes cannot infect genitalia and genital herpes cannot
34
infect the mouth.” Resp. at 69. However, McIntosh testified at trial that both
strains of herpes can be found in the genital area and/or the mouth area. Resp.
Ex. G at 363. Because Petitioner’s allegation that he was prejudiced by trial
counsel’s alleged deficiency lacks factual support and is meritless, Petitioner’s
Strickland claim is unsubstantial, and Martinez does not apply to excuse his
default. Thus, Ground Eight is due to be denied.
I. Ground Nine
Petitioner claims his trial attorney was ineffective for failing to interview,
secure, and/or present readily available defense witnesses at trial. Doc. 1 at 15.
According to Petitioner, C.S.’s mother, Kelli Gibbs, was available to testify that
she spoke with C.S. after Petitioner’s arrest and determined that C.S. was lying
about Petitioner’s abuse. Id. at 16. He also claimed Kelli Gibbs would have
testified Petitioner never slept in the bed with C.S. while they were living in
the home where the first incident allegedly occurred; Petitioner and all the
children would always jointly attend Kelli Gibb’s doctor appointments, never
leaving Petitioner at home alone with the children; and that Kelli Gibbs was
never hospitalized while they were living with Katrina Strickland, the home
where the last incident allegedly occurred. Id. at 17. Petitioner also argues trial
counsel should have presented Katrina Strickland as a witness, because she
would have testified that when Petitioner, C.S., and Kelli Gibbs lived with her,
Petitioner and C.S. were never left in the residence alone and at no time were
35
any bedding materials left in the living room. Id. at 8. Petitioner finally asserts
trial counsel should have presented Jonathan and Joshua Strickland who would
have also testified that Petitioner and C.S. were never left at their residence
alone without Kelli Gibbs present and their mother, Katrina Strickland,
actively watched them throughout the day. Id. at 19.
After the state presented its case, Petitioner, under oath, advised the trial
court that he was aware of the witnesses trial counsel intended to call and
stated there were no other witnesses he wished to present. Resp. Ex. H at 49193. He cannot now go behind that sworn testimony. Further, even assuming
trial counsel was deficient in failing to present these witnesses at trial,
Petitioner cannot demonstrate prejudice. During his police interrogation,
Petitioner admitted that he would occasionally sleep in the same bed as C.S.
and that while in the bed together, he had sexual contact with C.S. Petitioner
admitted this occurred on numerous occasions, conceding he had the
opportunity to commit these offenses. Further, C.S. testified that one of the
sexual batteries occurred while her little sister was also in the bed,
demonstrating that Petitioner did not have to be alone with C.S. to commit
these crimes. As such, he cannot show that but for counsel’s failure to present
these witnesses, the outcome of his trial would have been different. Petitioner’s
Strickland claim is unsubstantial, and Martinez does not apply to excuse his
default. Thus, Ground Nine is due to be denied.
36
J. Ground Ten
Petitioner contends his trial counsel was ineffective for failing to file a
motion in limine to exclude Green’s testimony regarding her erroneous initial
observational conclusion that C.S. suffered “blunt force penetrating trauma”
and her testimony that she changed that conclusion after consulting with her
supervisor. Doc. 1 at 21. He argues Green’s testimony should have been
suppressed because it was cumulative to Dr. McIntosh’s testimony and
contributed to confusion of the issues, causing prejudice to Petitioner. Id. at 22.
Despite Petitioner’s argument, trial counsel used Green’s conflicting
findings to Petitioner’s advantage. During McIntosh’s cross-examination,
counsel highlighted Green’s initial false findings and used that error to
challenge Green’s reliability and credibility. Resp. Ex. G at 368-69. Trial
counsel also elicited testimony that following Green’s initial false finding,
McIntosh implemented a new policy that he would review any reports and
findings that show positive results for sexual abuse. Id. at 369. Trial counsel’s
use of Green’s testimony may have been strategic, and such actions are not
deficient. Nevertheless, even assuming trial counsel acted deficiently here,
Petitioner cannot demonstrate prejudice because absent any testimony from
Green or McIntosh, the other evidence produced at trial was enough to support
the jury’s verdict. Because Petitioner’s allegation that he was prejudiced by trial
counsel’s alleged deficiency lacks factual support and is meritless, Petitioner’s
37
Strickland claim is unsubstantial, and Martinez does not apply to excuse his
default. Ground Ten is due to be denied.
K. Ground Eleven
Petitioner argues that trial counsel was ineffective for failing to “secure
an adequate Williams[8] Rule Hearing, with the presentation of witnesses, in
order to develop a sound and proper record.” Doc. 1 at 23-24. According to
Petitioner, the state sought to introduce similar fact evidence of other
uncharged acts, which were not inextricably intertwined with the charged
offenses; and counsel inadequately moved to suppress such acts. Id.
Prior to trial, the trial court conducted an evidentiary hearing on defense
counsel’s second motion in limine, in which trial counsel sought to exclude
evidence of the uncharged crime involving Petitioner sexually abusing C.S. in
Duval County, Florida. Resp. Ex. C at 4. Trial counsel did not present C.S. as a
witness during the evidentiary hearing, but instead asked to present her
pretrial deposition testimony instead. Id. at 47. The state argued that trial
counsel’s argument was more akin to a contention that such testimony should
be excluded based on its irrelevance instead of the inadmissible Williams rule
or collateral crime evidence. Id. at 50-51. In support of that argument, the state
highlighted that the Jacksonville incident involved the same victim, and was
8
Williams v. State, 110 So. 2d 654, 662 (Fla. 1959).
38
the initial incidence of abuse, as such, the uncharged crime provided a
background for the charged crimes that followed in Nassau County. Id. In
accordance with trial counsel’s request, the trial court agreed to review C.S.’s
deposition testimony and her CPT interview instead of subjecting C.S. to
another round of in-court questioning. Id. at 53. After the court reviewed her
statements, it entered an order denying Petitioner’s request to exclude the
evidence, finding “[t]he similar fact evidence is relevant to corroborate the
alleged victim’s testimony and to show a pattern of conduct . . . .” Resp. Ex. A
at 113.
In the Petition, Petitioner avers counsel should have objected to the
presentation of no witnesses, and but for that failure, the evidence would not
have been admitted and the outcome of his trial would have been different.
However, because the trial court considered sworn testimony when denying the
motion in limine, Petitioner cannot demonstrate that trial counsel was
ineffective for failing to call witnesses during the hearing on the motion in
limine. Thus, because Petitioner’s allegation lacks factual support and is
meritless, Petitioner’s Strickland claim is unsubstantial, and Martinez does not
apply to excuse his default. As such, Ground Eleven is due to be denied.
L. Ground Twelve
Petitioner contends his trial counsel was ineffective for failing to
adequately move for a continuance on the day of trial, so she could secure the
39
presence of a defense expert witness and thoroughly prepare regarding
new/additional circumstances that were presented to defense counsel that
morning. Doc. 1 at 26. Petitioner acknowledges that trial counsel was previously
granted a continuance due to a conflict with “said expert[’s]” scheduling; but
failed to properly move again by filing a written motion. Id. He claims that but
for trial counsel’s failure, the jury would have returned a different verdict. Id.
at 26.
As Respondents explain, Petitioner does not allege who this defense
expert is or what he/she would have testified to had trial counsel obtained a
second continuance on the morning of trial. Further, the record refutes
Petitioner’s allegations that he and trial counsel were unprepared for trial or
received new information the morning trial began. Notably, on the morning of
trial, the parties informed the court that they were ready to proceed, that they
had discussed any pending issues the Friday before, and the state advised, “I
haven’t provided anything new this morning.” Resp. Ex. F at 140. Further, after
the state presented its case, Petitioner, under oath, advised the trial court that
trial counsel advised Petitioner of the witnesses they planned to call on his
behalf, that he did not wish to testify, and that there were no other witnesses
he wished to call. Resp. Ex. H at 491-93. Thus, because Petitioner’s allegation
lacks factual support and is meritless, Petitioner’s Strickland claim is
40
unsubstantial, and Martinez does not apply to excuse his default. Ground
Twelve is due to be denied.
M. Ground Thirteen
Petitioner argues trial counsel was ineffective for “failing to secure a
constitutionally adequate racially unbiased jury. . . .” Doc. 1 at 27. According to
Petitioner, after jury selection, he was transported back to the jail where
another inmate informed him that his jury panel should have included other
African Americans to choose from. Id. at 28. The next morning, Petitioner
informed trial counsel “of his discovery and desire to have said constitutionally
racially balanced and unbiased jurors of his peers to hear and deliberate for his
criminal trial proceedings.” Id. He notes that trial counsel notified the trial
court of Petitioner’s concern, but when the trial court denied the request, trial
counsel failed to further object, allowing the trial to proceed with a “racially
biased jury.” Id. at 28.
At the close of jury selection, Petitioner advised the trial court the panel
selected was acceptable to him. Resp. Ex. E at 123. Thereafter, on the morning
of trial but prior to the jury being sworn in, trial counsel advised the court of
the following:
MS. JAMIESON: Um, Your Honor, Mr. Gibbs
asked that I note for purposes of the record that there
were no, um, no African American members on the
entire potential panel. I’ve explained to him that we
already accepted, you know, who we selected and who
41
the Court is intending to impanel this morning, but he
did just want me to note for purposes of the record that
there weren’t any members of his race out of the entire
panel as a whole.
THE COURT: Thank you. Ready to bring in the
jury?
Resp. Ex. F at 140-41. Thus, Petitioner’s counsel did raise the issue and the trial
court overruled the objection. Moreover, Petitioner does not argue that a biased
juror was selected and deliberated in his case, and his allegations here are
conclusory. See, e.g., United States v. Guy, 924 F.2d 702, 706 (7th Cir. 1991)
(“Mere observation that there were no African-Americans on a panel that was
drawn from a population containing African-Americans simply is not sufficient
to demonstrate any systematic exclusion.”). Further, because Petitioner
personally affirmed his acceptance of the selected jury, he cannot demonstrate
that the trial court would have granted his request to strike the entire panel
had trial counsel pursued this issue further. 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, like Appellant,
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
42
juror to serve on his jury.”). Thus, because Petitioner’s allegation lacks factual
support and is meritless, Petitioner’s Strickland claim is unsubstantial, and
Martinez does not apply to excuse his default. Ground Thirteen is due to be
denied.
N. Ground Fourteen
Petitioner argues trial counsel was ineffective for failing to object and
require C.S. to wait outside the courtroom during trial since she was a witness
and subject to the rule of sequestration. Doc. 1 at 29-30. According to Petitioner,
proper sequestration of C.S. would have allowed trial counsel to recall C.S. and
adequately impeach her with statements made by other witnesses; and he
claims that allowing her to remain in the courtroom during trial, “allowed a
Giglio9 violation to go uncorrected.” Id. at 30
Petitioner fails to identify what testimony by C.S. was allegedly false and,
thus, this claim is also conclusory. Further, at the commencement of trial, the
state advised the trial court that C.S. requested to remain in the courtroom
following her testimony. Resp. Ex. F at 139. Trial counsel responded they did
not anticipate calling C.S. as a witness; and thus, the trial court allowed C.S. to
remain in the courtroom. Id. at 139. Under section 90.616(1) and (2)(d), Florida
Statutes, a victim of a crime and the parent or guardian of a minor child victim
9
Giglio v. United States, 405 U.S. 150 (1972).
43
are excluded from the rule of sequestration unless the court determines such
person’s presence to be prejudicial. Here, C.S., as the minor child victim, had a
right to be present in the courtroom and the trial court found that her presence
was not so prejudicial as to burden that right. Counsel cannot be deficient for
failing to make a meritless objection. Because Petitioner’s allegation lacks
factual support and is meritless, Petitioner’s Strickland claim is unsubstantial,
and Martinez does not apply to excuse his default. Ground Fourteen is due to
be denied.
O. Ground Fifteen
Petitioner contends trial counsel was ineffective for failing to object to the
state’s improper comments made during opening and closing, which bolstered
the credibility of the victim and other witnesses. Doc. 1 at 31-32. He also argues
that trial counsel’s comment during closing that C.S. had an inability to
understand the importance of telling the truth improperly bolstered her
credibility because it excused her “blatant perjury.” Id. at 32.
Petitioner’s claim is again conclusory, and he does not identify any
specific comment by the state or counsel that would amount to the type of
prejudice for which he alleges. A reviewing court must evaluate an allegedly
improper comment in the context of both the prosecutor’s entire closing
argument and the trial as a whole, because “[c]laims of prosecutorial
misconduct are fact-specific inquiries which must be conducted against the
44
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.”). The Court reviewed the state’s opening and closing
argument and finds that, in context, these statements are merely a recitation
of the facts. Resp. Ex. F at 150-55; Resp. Ex. G at 553-74. Further, the Court
reviewed trial counsel’s closing argument and finds that her statements were
not improper, but rather in line with her argument that the state failed to prove
the offenses beyond a reasonable doubt and that C.S.’s inconsistent statements
show she “doesn’t understand the magnitude of taking an oath.” Resp. Ex. G at
579-602. Trial counsel was not deficient for failing to make a meritless objection,
and her closing argument did not prejudice Petitioner. Because Petitioner’s
allegation lacks factual support and is meritless, Petitioner’s Strickland claim
is unsubstantial, and Martinez does not apply to excuse his default. Ground
Fifteen is due to be denied.
P. Ground Sixteen
Petitioner argues his trial attorney was ineffective for failing to ensure
that a “Williams Rule jury instruction” was given to the jury prior to the
presentation of testimony regarding the similar uncharged crime. Doc. 1 at 33.
45
According to Petitioner, trial counsel’s failure to request that this instruction
be read to the jury prior to C.S.’s testimony about the Jacksonville incident
precluded the jury from distinguishing between uncharged crimes and charged
crimes, and thus, affected its verdict. Id.
While the trial court did not instruct the jury on other crimes evidence
immediately prior to C.S.’s testimony, the state referenced the evidence in its
opening statement and advised the jury that C.S. will testify that the abuse
started in Jacksonville “although that charge is not before you to make a
decision on.” Resp. Ex. F at 151. Further, during the final charge to the jury,
the trial court did instruct the jury on Florida Standard Jury Instruction 3.8(a)
regarding “Williams Rule” evidence and advised Petitioner cannot be convicted
of a crime not included in the Information. Resp. Ex. A at 137. As such, prior to
deliberations, the jury received the proper instruction, and Petitioner cannot
demonstrate that but for counsel’s failure to request that the instruction be read
at an earlier time, the outcome of his trial would have been different. Because
Petitioner’s allegation lacks factual support and is meritless, Petitioner’s
Strickland claim is unsubstantial, and Martinez does not apply to excuse his
default. Ground Sixteen is due to be denied.
Q. Ground Seventeen
Petitioner argues the cumulative effect of his trial counsel’s errors
deprived him of a fair trial. Doc. 1 at 35-36. “The cumulative error doctrine
46
provides that an aggregation of non-reversible errors (i.e., plain errors failing
to necessitate reversal and harmless errors) can yield a denial of the
constitutional right to a fair trial, which calls for reversal.” United States v.
Baker, 432 F.3d 1189, 1223 (11th Cir. 2005) (internal quotation marks omitted).
The Eleventh Circuit addresses “claims of cumulative error by first considering
the validity of each claim individually, and then examining any errors that [it]
find[s] in the aggregate and in light of the trial as a whole to determine whether
the appellant was afforded a fundamentally fair trial.” Morris v. Sec’y, Dep’t of
Corr., 677 F.3d 1117, 1132 (11th Cir. 2012). Because the Court has determined
that none of Petitioner’s individual claims of error or prejudice have merit,
Petitioner’s cumulative error claim cannot stand. See United States v. Taylor,
417 F.3d 1176, 1182 (11th Cir. 2005) (“[There being] no error in any of the
district court’s rulings, the argument that cumulative trial error requires that
this Court reverse [the defendant’s] convictions is without merit.”). As such,
Ground Seventeen is due to be denied.
R. Ground Eighteen
Petitioner asserts the trial court did not have subject matter jurisdiction
to impose Petitioner’s judgment and sentence because the “documented
evidence, and, testimony of a records custodian, substantiates that Petitioner
Gibbs and/or C.S. w[ere] not within Nassau County, Florida during the dates of
the charging Information.” Doc. 1 at 37. Petitioner raised this issue in state
47
court through a petition for writ of habeas corpus. Resp. Ex. T at 8-22. The trial
court issued a one-sentence order denying the claim. Id. at 23. Petitioner
appealed, and the First DCA per curiam affirmed the trial court’s summary
denial without a written opinion. Resp. Ex. X. Upon review of the record as a
whole and considering the totality of the evidence produced at trial, the Court
finds the state court’s adjudication was not contrary to clearly established
federal law and did not involve an unreasonable application of clearly
established federal law. Nor was the state court’s adjudication based on an
unreasonable determination of the facts in light of the evidence presented in
the state court proceedings. Ground Eighteen is due to be denied.10
Accordingly, it is
ORDERED AND ADJUDGED:
1.
The Petition (Doc. 1) is DENIED and this case is DISMISSED
WITH PREJUDICE.
In his Reply, Petitioner raises for the first time a claim regarding
“Judge Robert Foster and other various circuit court judges in the Florida State
Judiciary” being investigated for “blatant racially biased decisions” around the
time of Petitioner’s trial. Reply at 29. In support of this allegation, Petitioner
attaches a news article titled “Florida’s sentencing system: It fails to account
for prejudice.” Doc. 40-1. However, arguments raised for the first time in a reply
brief are not properly before a reviewing court. See Herring v. Sec’y, Dep’t of
Corr., 397 F.3d 1338, 1342 (11th Cir. 2005) (citations omitted). Thus, the Court
declines to address this allegation. However, the Court notes that the crime for
which the jury convicted Petitioner required Judge Foster to impose a
mandatory life sentence.
10
48
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
appealability is not warranted, the Clerk shall terminate from the pending
motions report any motion to proceed on appeal as a pauper that may be filed
in this case. Such termination shall serve as a denial of the motion.11
DONE AND ORDERED at Jacksonville, Florida, this 30th day of
September, 2020.
TIMOTHY J. CORRIGAN
United States District Judge
Jax-7
C:
Larry Alonzo Gibbs, Jr., #144225
Bryan G. Jordan, 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.
11
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