Watts v. Secretary, Department of Corrections et al (Duval County)

Filing 22

ORDER denying 1 petition, dismissing the action with prejudice, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 11/13/2023. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
CHRISTOPHER WATTS,
Petitioner,
v.

Case No. 3:20-cv-1329-BJD-MCR

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
________________________________
ORDER
I. Status
Petitioner Christopher Watts, an inmate of the Florida penal system,
initiated this action on November 19, 2020, by filing a Petition Under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State Custody (Petition; Doc.
1).1 In the Petition, Watts challenges a 2015 state court (Duval County,
Florida) judgment of conviction for armed robbery, armed burglary, and sexual
battery.2 He raises fourteen grounds for relief in the Petition. Respondents
submitted an Answer to Petition for Writ of Habeas Corpus (Response; Doc.

See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).
For purposes of reference to pleadings, the Court will cite the document and
document page numbers assigned by the Court’s electronic docketing system.
1
2

11). They also submitted an Appendix with Exhibits A-L.3 See Doc. 12-1
through 12-3. Watts filed a brief in reply (Reply; Doc. 19).
II. Relevant Procedural History
On May 6, 2014, the State of Florida charged Petitioner by information
in Case No. 2014-CF-3639 with armed robbery, armed burglary, and sexual
battery. Ex. B1 at 14. After a jury trial in November 2014, he was convicted as
charged and sentenced to life in prison on each count to run concurrently. Ex.
B1 at 106-14. As to each count, the court found Petitioner a habitual felony
offender, imposed a minimum-mandatory term for each count to run
consecutively, and designated Petitioner a sexual predator. Id. at 111-13, 118.
Petitioner appealed, raising three issues: (1) the trial court erred in
allowing a racially discriminatory peremptory challenge to the sole remaining
African-American juror over defense objection; (2) Watts’ act of forcing a person
to penetrate her vagina with her own finger did not constitute sexual battery
as a matter of law, resulting in fundamental error; and (3) consecutive 10-year
sentences are not required by section 775.087(2), Florida Statutes, for crimes
committed in a single episode and involving a single victim. Ex. B 5. Additional

The Court will refer to the exhibits in the Appendix (Doc. 12) as “Ex.” Where
provided, the page numbers referenced are the Bates stamp numbers at the bottom
of each page of the Exhibit unless otherwise indicated.
3

2

briefing followed. Ex. B6, B7, B10. On September 18, 2015, the First District
Court of Appeal (First DCA) per curiam affirmed Petitioner’s conviction and
sentence. Ex. B8. The mandate issued on October 6, 2015. Ex. B9.
Petitioner filed a pro se state Petition for Writ of Habeas Corpus with
the First DCA on April 13, 2016.4 Ex. C1. He argued that his appellate counsel
was deficient for failure to file a Rule 3.800(b)(2) motion to properly preserve a
sentencing error. Id. at 3. The state responded. Ex. C2. In a written opinion,
the First DCA denied habeas relief on January 23, 2017. Ex. C3. Petitioner
sought rehearing, Ex. C4, and the First DCA denied rehearing. Ex. C5.
Petitioner sought discretionary review, Ex. C6, D1, D3, and the Florida
Supreme Court declined to accept jurisdiction and denied the petition for
review. Ex. D4.
Petitioner filed a pro se motion for postconviction relief pursuant to
Florida Rule of Criminal Procedure 3.850 on June 19, 2017. Ex. F1 at 1-52. The
circuit court entered an order directing Petitioner to amend grounds 1, 2, 4,
and 9. Id. at 59-62. Petitioner filed an Amended Motion for Post Conviction
Relief on June 21, 2018, amending grounds 1, 2, 4, and 9. Id. at 63-86. In an

In reciting the procedural history, the Court identifies the date of Petitioner’s
filings giving him the benefit of the mailbox rule.
4

3

order entered December 6, 2018, the circuit court denied Petitioner’s motion
for postconviction relief. Id. at 94-365. The court set forth the applicable law
regarding postconviction claims of ineffective assistance of counsel, citing
Strickland v. Washington, 466 U.S. 668 (1984). Ex. F1 at 94-95. The court
attached portions of the record to its order. See Attachments: Exhibits A-C.
Petitioner sought rehearing, the court denied rehearing, and Petitioner
appealed. Ex. F1 at 372-91.
On June 20, 2019, the First DCA dismissed the untimely appeal. Ex. F4.
Petitioner moved for rehearing, Ex. F5, and rehearing was denied. Ex. F6. The
mandate issued on September 13, 2019. Ex. F7.
Petitioner filed a pro se motion to correct. Ex. G1. The circuit court
denied the motion. Id. Petitioner sought rehearing and rehearing was denied.
Id. Petitioner appealed, id., and the First DCA affirmed. Ex. G2. Petitioner
moved for rehearing, Ex. G3, and the First DCA denied rehearing. Ex. G4. The
mandate issued October 1, 2020. Ex. G5.
Petitioner filed a state Petition Seeking Belated Appeal on September 6,
2019 related to the postconviction court’s December 2018 ruling denying
postconviction relief. Ex. J1. The First DCA granted the petition on February
10, 2020. Ex. J2. Petitioner filed an appeal brief, briefing grounds 1, 2, 3, 6, 7,
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8, and 9 of his postconviction motion. Ex. H2. The state filed a notice of filing
no answer brief. Ex. H3. On October 14, 2020, the First DCA affirmed. Ex. H4.
The mandate issued on November 12, 2020. Ex. H5.
III. One-Year Limitations Period
Respondents calculate the Petition was timely filed. Response at 6-8.
This action was timely filed within the one-year limitations period. See 28
U.S.C. § 2244(d).
IV. Evidentiary Hearing
In a habeas corpus proceeding, the burden is on the petitioner to
establish the need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla.
Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to
grant an evidentiary hearing, a federal court must consider whether such a
hearing could enable an applicant to prove the petition’s factual allegations,
which, if true, would entitle the applicant to federal habeas relief.” Schriro v.
Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t of Corr., 834
F.3d 1299, 1318-19 (11th Cir. 2016). “It follows that if the record refutes the
applicant’s factual allegations or otherwise precludes habeas relief, a district
court is not required to hold an evidentiary hearing.” Schriro, 550 U.S. at 474.
The pertinent facts of this case are fully developed in the record before the
5

Court. Because the Court can “adequately assess [Petitioner’s] claim[s] without
further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir.
2003), an evidentiary hearing will not be conducted.
V. Governing Legal Principles
A. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs a state prisoner’s federal petition for habeas corpus. See Ledford v.
Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.
2016). “‘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) (quotation marks omitted)). As such, federal habeas review of
final state court decisions is “‘greatly circumscribed’ and ‘highly deferential.’”
Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011) (quotation
marks omitted)).
The first task of the federal habeas court is to identify the last state court
decision, if any, that adjudicated the claim 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 a written opinion explaining its rationale in order for the state court’s
6

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 United States Supreme Court has
instructed:
[T]he 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.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be
rebutted by showing that the higher state court’s adjudication most likely
relied on different grounds than the lower state court’s reasoned decision, such
as persuasive alternative grounds that were briefed or argued to the higher
court or obvious in the record it reviewed. Id. at 1192, 1196.
If the claim was “adjudicated on the merits” in state court, § 2254(d) bars
relitigation of the claim unless the state court’s decision (1) “was contrary to,
or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States;” or (2) “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); Richter, 562 U.S. at 97-98.

7

The Eleventh Circuit describes the limited scope of federal review pursuant to
§ 2254 as follows:
First, § 2254(d)(1) provides for federal review for
claims of state courts’ erroneous legal conclusions. As
explained by the Supreme Court in Williams v. Taylor,
529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000),
§ 2254(d)(1) consists of two distinct clauses: a
“contrary to” clause and an “unreasonable application”
clause. The “contrary to” clause allows for relief only
“if the state court arrives at a conclusion opposite to
that reached by [the Supreme] Court on a question of
law or if the state court decides a case differently than
[the Supreme] Court has on a set of materially
indistinguishable facts.” Id. at 413, 120 S. Ct. at 1523
(plurality opinion). The “unreasonable application”
clause allows for relief only “if the state court identifies
the correct governing legal principle from [the
Supreme] Court's decisions but unreasonably applies
that principle to the facts of the prisoner’s case.” Id.
Second, § 2254(d)(2) provides for federal review for
claims
of
state
courts’
erroneous
factual
determinations. Section 2254(d)(2) allows federal
courts to grant relief only if the state court’s denial of
the petitioner’s claim “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)(2). The Supreme Court has not yet defined §
2254(d)(2)’s “precise relationship” to § 2254(e)(1),
which imposes a burden on the petitioner to rebut the
state court’s factual findings “by clear and convincing
evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S.
Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield v.
Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192
L.Ed.2d 356 (2015). Whatever that “precise
8

relationship” may be, “‘a state-court factual
determination is not unreasonable merely because the
federal habeas court would have reached a different
conclusion in the first instance.’” Titlow, 571 U.S. at --, 134 S. Ct. at 15 (quoting Wood v. Allen, 558 U.S. 290,
301, 130 S. Ct. 841, 849, 175 L.Ed.2d 738 (2010)).
Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016). Also, deferential
review under § 2254(d) generally is limited to the record that was before the
state court that adjudicated the claim on the merits. See Cullen v. Pinholster,
563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1) “requires an
examination of the state-court decision at the time it was made”).
Thus, “AEDPA erects a formidable barrier to federal habeas relief for
prisoners whose claims have been adjudicated in state court.” Burt v. Titlow,
134 S. Ct. 10, 16 (2013). “Federal courts may grant habeas relief only when a
state court blundered in a manner so ‘well understood and comprehended in
existing law’ and ‘was so lacking in justification’ that ‘there is no possibility
fairminded jurists could disagree.’” Tharpe, 834 F.3d at 1338 (quoting Richter,
562 U.S. at 102-03). This standard is “meant to be” a “difficult” one to meet.
Richter, 562 U.S. at 102. Thus, to the extent that the petitioner’s claims were
adjudicated on the merits in the state courts, they must be evaluated under 28
U.S.C. § 2254(d).

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B. Exhaustion/Procedural Default
There are prerequisites to federal habeas review. Before bringing a §
2254 habeas action in federal court, a petitioner must exhaust all state court
remedies that are available for challenging his state conviction. See 28 U.S.C.
§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly
present[]” every issue raised in his federal petition to the state’s highest court,
either on direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346,
351 (1989) (emphasis omitted). Thus, to properly exhaust a claim, “state
prisoners must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established
appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
In addressing exhaustion, the United States Supreme Court explained:
Before seeking a federal writ of habeas corpus, a
state prisoner must exhaust available state remedies,
28 U.S.C. § 2254(b)(1), thereby giving the State the
“‘“opportunity to pass upon and correct” alleged
violations of its prisoners’ federal rights.’” Duncan v.
Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d
865 (1995) (per curiam) (quoting Picard v. Connor, 404
U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)). To
provide the State with the necessary “opportunity,”
the prisoner must “fairly present” his claim in each
appropriate state court (including a state supreme
court with powers of discretionary review), thereby
alerting that court to the federal nature of the claim.
Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan
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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,[5] supra, at 747–
748, 111 S. Ct. 2546; Sykes,[6] 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
5
6

Coleman v. Thompson, 501 U.S. 722 (1991).
Wainwright v. Sykes, 433 U.S. 72 (1977).
11

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, 132 S. Ct. 1309, 1316 (2012). Thus, procedural defaults may
be excused under certain circumstances. Notwithstanding that a claim has
been procedurally defaulted, a federal court may still consider the claim if a
state habeas petitioner can show either (1) cause for and actual prejudice from
the default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d
1144, 1157 (11th Cir. 2010). In order for a petitioner to establish cause,
the procedural default “must result from some
objective factor external to the defense that prevented
[him] from raising the claim and which cannot be
fairly attributable to his own conduct.” McCoy v.
Newsome, 953 F.2d 1252, 1258 (11th Cir. 1992)
(quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639).[7]
Under the prejudice prong, [a petitioner] must show
that “the errors at trial actually and substantially
disadvantaged his defense so that he was denied
fundamental fairness.” Id. at 1261 (quoting Carrier,
477 U.S. at 494, 106 S. Ct. 2639).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).
In the absence of a showing of cause and prejudice, a petitioner may
receive consideration on the merits of a procedurally defaulted claim if the

7

Murray v. Carrier, 477 U.S. 478 (1986).
12

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
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.
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C. Ineffective Assistance of Trial Counsel
“The Sixth Amendment guarantees criminal defendants the effective
assistance of counsel. That right is denied when a defense attorney’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, 466
U.S. at 687).
To establish deficient performance, a person
challenging a conviction must show that “counsel’s
representation fell below an objective standard of
reasonableness.” [Strickland,] 466 U.S. at 688, 104 S.
Ct. 2052. A court considering a claim of ineffective
assistance must apply a “strong presumption” that
counsel’s representation was within the “wide range”
of reasonable professional assistance. Id., at 689, 104
S. Ct. 2052. The challenger’s burden is to show “that
counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Id., at 687, 104 S. Ct. 2052.
With respect to prejudice, a challenger must
demonstrate “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id., at 694, 104 S. Ct. 2052.
It is not enough “to show that the errors had some
conceivable effect on the outcome of the proceeding.”
Id., at 693, 104 S. Ct. 2052. Counsel’s errors must be
“so serious as to deprive the defendant of a fair trial, a
14

trial whose result is reliable.” Id., at 687, 104 S. Ct.
2052.
Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of
any iron-clad rule requiring a court to tackle one prong of the Strickland test
before the other.” Ward, 592 F.3d at 1163. Since both prongs of the two-part
Strickland test must be satisfied to show a Sixth Amendment violation, “a
court need not address the performance prong if the petitioner cannot meet the
prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley, 209 F.3d 1243,
1248 (11th Cir. 2000)). As stated in Strickland: “If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.” Strickland, 466 U.S. at
697.
A state court’s adjudication of an ineffectiveness claim is accorded great
deference.
“[T]he standard for judging counsel’s representation is
a most deferential one.” Richter, 562 U.S. at ---, 131 S.
Ct. at 788. But “[e]stablishing that a state court’s
application of Strickland was unreasonable under §
2254(d) is all the more difficult. The standards created
by Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem, review
is doubly so.” Id. (citations and quotation marks
omitted). “The question is not whether a federal court
believes the state court’s determination under the
Strickland standard was incorrect but whether that
15

determination was unreasonable — a substantially
higher threshold.” Knowles v. Mirzayance, 556 U.S.
111, 123, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (2009)
(quotation marks omitted). If there is “any reasonable
argument that counsel satisfied Strickland’s
deferential standard,” then a federal court may not
disturb a state-court decision denying the claim.
Richter, 562 U.S. at ---, 131 S. Ct. at 788.
Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009). In other words, “[i]n addition to the
deference to counsel’s performance mandated by Strickland, the AEDPA adds
another layer of deference — this one to a state court’s decision — when we are
considering whether to grant federal habeas relief from a state court’s
decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As such,
“[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. 356, 371 (2010).
Petitioner also raises claims of ineffective assistance of appellate
counsel. A claim of ineffective assistance of appellate counsel is governed by
this same Strickland standard. Philmore v. McNeil, 575 F.3d 1251, 1264 (11th
Cir. 2009) (per curiam), cert. denied, 559 U.S. 1010 (2010). As in a claim of
ineffective assistance of trial counsel, failure to establish either prong of the
Strickland standard is fatal to a claim of ineffective assistance of appellate

16

counsel. Tuomi v. Sec’y, Fla. Dep’t of Corr., 980 F.3d 787, 795 (11th Cir. 2020),
cert. denied, 141 S. Ct. 1721 (2021).
In applying the two-pronged standard established in Strickland, the
Court is mindful that appellate counsel may weed out weaker, although
meritorious arguments, as there is no duty under the Sixth Amendment to
raise every non-frivolous issue. Overstreet v. Warden, 811 F.3d 1283, 1287
(11th Cir. 2016).

Regarding the prejudice prong, “[a]ppellate] [c]ounsel’s

performance will be deemed prejudicial if we find that the neglected claim
would have a reasonable probability of success on appeal.” Tuomi, 980 F.3d at
795 (quoting Philmore, 575 F.3d at 1265) (internal quotation omitted).
“Generally, only when ignored issues are clearly stronger than those
presented, will the presumption of effective assistance of counsel be overcome.”
Overstreet, 811 F.3d at 1287 (quoting Smith v. Robbins, 528 U.S. 259, 288
(2000) quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)).
VI. Findings of Fact and Conclusions of Law
A. Ground One
As Ground One, Petitioner claims the trial court erred in allowing a
racially discriminatory peremptory challenge to the sole remaining African
American juror over defense objection. Petition at 5. He raised a comparable
17

claim on direct appeal. Ex. B5. The First DCA per curiam affirmed. Ex. B8.
Respondents contend the constitutional claim is unexhausted and procedurally
defaulted. Response at 10-12. Upon review, Petitioner raised more than a claim
of trial court error on direct appeal. He relied on the United States Constitution
and the holding in Batson v. Kentucky, 476 U.S. 79 (1986).8 Ex. B5 at ii, 13;
Ex. B7 at 1-3. He argued the remedy “for this violation of the Equal Protection
Clause in the Fourteenth Amendment to the U.S. Constitution and the right
to trial by an impartial jury” is reversal of his convictions. Ex. B7 at 2-3.
The Court finds Petitioner properly exhausted the Batson claim raised
in Ground One. He cited to a violation of federal law, referred to relevant case
law, and referenced a constitutional provision to alert the state court that he
was raising a federal constitutional claim. As such, this Court concludes that
the claim was exhausted and fairly presented to the First DCA.
Therefore, the Court will address the claim in accordance with the
deferential standard for federal court review of state court adjudications.
Under § 2254(d)(1), the question is whether the state court unreasonably
applied Batson and its progeny to the facts of the case. After a review of the

Petitioner also cited Melbourne v. State, 679 So. 2d 759, 763 (Fla. 1996), which
references Batson jurisprudence. Ex. B5 at 8; Ex. B7 at 1-2.
8

18

record and the applicable law, the Court concludes that the state court’s
adjudication of this claim was not contrary to clearly established federal law,
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. Thus, Petitioner is not
entitled to relief on the basis of this claim.
Under the Equal Protection Clause, a defendant has a constitutional
right to be tried by a jury whose members were selected pursuant to
nondiscriminatory criteria. Batson, 476 U.S. at 85-86. Of import, “[t]he Equal
Protection Clause forbids a prosecutor from striking potential jurors solely on
account of their race.” United States v. Walker, 490 F.3d 1282, 1290 (11th Cir.
2007) (citing Batson, 476 U.S. at 86). Indeed, “[t]he Constitution forbids
striking even a single juror for a discriminatory purpose.” Flowers v.
Mississippi, 139 S. Ct. 2228, 2244 (2019).
To evaluate an Equal Protection Clause claim concerning the use of
peremptory challenges, there is a three-part process set forth in Batson:
[O]n April 30, 1986, the Court decided Batson v.
Kentucky and established its three-part process for
evaluating claims that a prosecutor used peremptory
challenges in violation of the Equal Protection Clause.
First, a defendant must make a prima facie showing
that a peremptory challenge has been exercised on the
19

basis of race. 476 U.S., at 96-97, 106 S. Ct. 1712.
Second, if that showing has been made, the
prosecution must offer a race-neutral basis for striking
the juror in question. Id., at 97-98, 106 S. Ct. 1712.
Third, in light of the parties' submissions, the trial
court must determine whether the defendant has
shown purposeful discrimination. Id., at 98, 106 S. Ct.
1712.
Miller-El v. Cockrell, 537 U.S. 322, 328–29 (2003).
Petitioner’s counsel invoked a Batson challenge at trial. The record
shows Rashad Nandon, a potential juror and single, young, black male, said he
rented his home. Ex. B2 at 38, 126. Ms. Rado asked the reason for the State’s
using a peremptory strike on Mr. Nandon. Id. at 126. The prosecutor responded
there were three reasons: Mr. Nandon is single, he rents, and he switched his
judgment concerning the selection of a particular card from a deck of cards. Id.
at 126-27. The prosecutor also differentiated between single and divorced
veniremen. Id. at 127. The court ruled:
THE COURT: Well, I think looking at the
entirety of the State’s reasons, they could apply to any
juror. They’re not race-related at all. So I think they
are facially race neutral, that that could have been the
same explanation for any younger person who is
single. I’ve never taken single to be the same as
divorced. I thought single meant never married, but
maybe not. So I’ll find that the explanation of the State
is not pretextural [sic] and is clear, reasonably specific,
racially neutral, reasonable and genuine.
20

Id.
The defense’s only stated objection concerned the peremptory strike of
Mr. Nandon. The trial court acknowledged the preservation of the issue for
appeal. Id. at 132.
At the conclusion of jury selection, when the court asked whether there
were any exceptions or objections, excluding the one concerning Mr. Nandon,
Ms. Rado mentioned Mr. McNair, a black male, and Mr. Waldon, a black male,
noting they were both struck by the State’s peremptory strikes. Id. at 140-41.
However, Ms. Rado explained that other than her previously stated objection
concerning Mr. Nandon, she had no additional objection. Id. at 141. The
prosecutor pointed out that two of the selected jurors are African American
females and the defense also struck one African American male. Id. The
prosecutor explained that concerning the two stricken African American
males, Mr. McNair and Mr. Waldon, one said he had a law enforcement issue
and one said he had spent time in prison and was a convicted armed robber.
Id. Ms. Rado explained that she had struck Mr. Bullard, an African American
male, because he had a school conflict. Id. When the court asked if there was
further argument, Ms. Rado responded this was not additional argument; it
was simply something she needed to put on the record. Id. at 141-42.
21

Upon examination of the record, it shows that Mr. Nandon was born in
1985, had lived in Jacksonville for ten years, was employed and single, and
rented his home. Id. at 38. During the course of the voir dire, Ms. Rado, in an
attempt to explain reasonable doubt, presented a hypothetical concerning a
shuffled deck of 52 cards and whether it is reasonable that she would pull the
ace of spades. Id. at 108-109. Upon inquiry, Mr. Nandon responded it was
possible, not reasonable. Id. He then, after questions concerning the existence
of the ace of spades, said it was reasonable to think that Ms. Rado could pull
that card. Id. at 110. Another prospective juror responded it was reasonable
and then Ms. Rado apparently received an affirmative response from a group
of prospective jurors. Id. Upon inquiry as to whether anyone disagreed, only
two potential jurors spoke up and said they did not agree with that assessment.
Id. at 110-11. Neither of those two served on the jury. As there was not
disparate questioning, this line of questioning was not probative of
discriminatory intent. Miller-El, 537 U.S. at 331-32.
Under these circumstances, Petitioner has not established an equal
protection violation as he has failed to demonstrate or show systematic
exclusion of black venire persons or the use of discriminatory criteria to select
jurors. “In evaluating whether the rationale for a strike is mere pretext, the
22

key question is the ‘genuineness of the [government's] explanation, rather than
its reasonableness.’” United States v. Gibson, 633 F. App’x 713, 717 (11th Cir.
2015) (quoting Walker, 490 F.3d at 1294). The State’s asserted reasons for
striking Mr. Nandon, that he was single, rented, and was quick to switch “his
judgment from being a possibility to there being a reasonableness to the
pulling of the card of one in 52[,]” were considered to be race neutral as the
trial court found the explanation for the strike credible and non-pretextual. Ex.
B2 at 126-27. The trial court’s assessment is important as the trial judge is in
the best position to consider the demeanor of the attorney who exercised the
challenge. Flowers, 139 S. Ct. at 2243-44 (noting the determinations of
credibility and demeanor lie peculiarly within the trial court’s province). The
First DCA affirmed the trial court’s decision.
The record also shows there were two African American females that
were selected to serve on the jury. Although this does not dispose of an
allegation of race-based peremptory challenges, it is a significant factor
tending to prove the plausibility of the government’s reasons for the actual
strike were credible and non-pretextual. Gibson, 633 F. App’x at 718. Of note,
there was no defense objection concerning intentional discrimination based on
gender.
23

The record in this case does not compel a finding that the State’s use of
a

peremptory

strike

against

Mr.

Nandon

constituted

intentional

discrimination. As such, there was no violation of Petitioner’s rights under the
Equal Protection Clause and the clearly established law as determined by the
Supreme Court in Batson. Here, AEDPA deference is due to the state court’s
determination. Petitioner is not entitled to habeas relief on Ground One.
B. Ground Two
As Ground Two, Petitioner alleges the act of forcing a person to penetrate
herself with her finger did not constitute sexual battery as a matter of law,
resulting in fundamental error through conviction. Petition at 7. Petitioner
concedes this issue. Reply at 3. As such, the Court will not address this ground
based on Petitioner’s concession.
C. Ground Three
As Ground Three, Petitioner alleges the trial court erred in applying
consecutive 10-year sentences, though not required for crimes committed in a
single episode involving one victim and no discharge. Petition at 8. Petitioner
also concedes this issue. Reply at 3. As such, the Court will not address this
ground due to Petitioner’s concession.

24

D. Ground Four
As Ground Four, Petitioner raises a claim of ineffective assistance of
appellate counsel for failure to preserve a sentencing issue by filing a Rule
3.800(b)(2) motion. Petition at 10. Respondents contend that Petitioner did not
properly exhaust the claim in Ground Four because he failed to fairly present
any federal constitutional argument in support of his claim in the First DCA.
Response at 15.
In his state petition for writ of habeas corpus, Petitioner raised a claim
of ineffective assistance of appellate counsel, claiming the failure of appellate
counsel to preserve a sentencing issue by filing a Rule 3.800(b)(2) motion
constituted “a serious error and a substantial deficiency that fell outside the
range of professionally acceptable performance.” Ex. C1 at 6. The First DCA
denied the petition finding appellate counsel was not ineffective. Ex. C3. As
such, this Court concludes that the claim of ineffective assistance of appellate
counsel, a Sixth Amendment claim, was exhausted and fairly presented to the
First DCA.
Therefore, the Court will address the claim in accordance with the
deferential standard for federal court review of state court adjudications. After
a review of the record and the applicable law, the Court concludes that the
25

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. Thus,
Petitioner is not entitled to relief on the basis of this claim.
Petitioner’s ineffectiveness claim is without merit because he has shown
neither deficient performance nor resulting prejudice. Accordingly, he is not
entitled to federal habeas relief on the claim in Ground Four. As noted by
Respondents, Petitioner did not establish prejudice as evinced by the record
which demonstrates that even if counsel had filed a Rule 3.800 motion and
then pursued the matter on appeal, the motion would have been denied and no
appellate relief would have been granted because the precedent at the time of
Petitioner’s appeal had not yet changed. Response at 55-56.
Petitioner’s convictions and sentences were final before the law in the
state district changed. Therefore, appellate counsel was not ineffective as
counsel cannot be held ineffective for failure to anticipate changes in the law.
Winston v. United States, No. 8:12-cv-719-T-27MAP, 2013 WL 6198858, at *3
(M.D. Fla. Nov. 27, 2013) (not reported in F.Supp.2d) (citing United States v.
Ardley, 273 F.3d 991, 993 (11th Cir. 2001); Spaziano v. Singletary, 36 F.3d
26

1028, 1039 (11th Cir. 1994); Thompson v. Wainwright, 787 F.2d 1447, 1459 n.8
(11th Cir. 1986)). As such, Petitioner is not entitled to habeas relief on Ground
Four.
E. Ground Five
As Ground Five, Petitioner alleges trial counsel rendered ineffective
assistance by failing to adequately investigate and conduct any meaningful
adversarial testing process against the state’s case. Petition at 12. He alleges
this occurred in a number of ways: (1) failure to investigate the source of the
cuts on Petitioner’s arm; (2) failure to depose all of the officers; (3) failure to
investigate the inconsistencies in the testimony of the state’s key witnesses;
and (3) failure to investigate police misconduct or fabrication of evidence. Id.
Respondents contend that the first two issues are unexhausted and
procedurally defaulted as they were not included in the Rule 3.850 motion.
In ground one of his amended Rule 3.850 motion, Petitioner alleged a
similar claim of ineffective assistance of counsel; however he did not contend
that counsel failed to investigate the cut from a broken beer bottle obtained at
his father’s house nor did he contend that counsel was ineffective for not
deposing all of the law enforcement officers.

27

The Court finds Petitioner did not exhaust these claims raised in Ground
Five. Because any future attempt to exhaust it would be futile, the claims are
procedurally defaulted. As Petitioner is procedurally barred from raising these
claims, he must demonstrate cause and prejudice. Petitioner has failed to
establish cause and prejudice or that a fundamental miscarriage of justice will
result if the Court fails to address the claims on their merits. The Court further
finds this is not an extraordinary case as Petitioner has not made a showing of
actual innocence rather than mere legal innocence. As such, the Court finds
that these claims raised in Ground Five are procedurally defaulted and the
fundamental miscarriage of justice exception is inapplicable. Petitioner’s
procedural default bars this Court’s review of these claims raised under
Ground Five.
That leaves the remaining portion of Ground Five for the Court’s
consideration. Petitioner exhausted his state court remedies by raising this
ineffective assistance of counsel claim by asserting it in ground one of his
amended motion for postconviction relief, and by raising it on appeal from the
denial of postconviction relief. Ex. H2. The First DCA affirmed. Ex. H4.
The postconviction court addressed this ground finding:
First, Defendant alleges counsel was deficient
for failing to investigate discrepancies in the location
28

of a baseball bat. Defendant claims prejudice because
there is a reasonable probability the bat had been
tampered with and the crime scene was staged.
Defendant further alleges counsel should have
retained an expert who would have concluded that the
sliding glass door had been shattered from inside the
residence.
The victim testified that the robber shattered
her sliding glass door with the butt of a shotgun. (Ex.
A at 168-70.) Investigators recovered Defendant’s
Deoxyribonucleic Acid (“DNA”) from a shard of glass
at the scene. (Ex. B at 99.) After entering her home,
the robber took a towel and wrapped it around one of
his arms. (Ex. A at 179.) When interviewing
Defendant, investigators observed cuts on his arms.
(Ex. A at 71-72.) The robber stole Defendant’s jewelry
and a blue iPod. (Ex. A at 173-76.) Shortly after the
robbery, Defendant offered to sell his sister jewelry
and a blue iPod. (Ex. B at 26-30, 80-85.) None of the
facts support Defendant’s theory that an elderly
woman shattered her own sliding glass door with a
baseball bat, so there is no reasonable probability the
outcome of Defendant’s trial would have been different
had counsel hired an expert to render this conclusory
claim. See State v. Oisorio, 657 So. 2d 4, 5 (Fla. 3d DCA
1995) (“The evidence against Oisorio was so
overwhelming, and the now-asserted defensive
materials so patently insubstantial that no rational
jury could do anything but convict him.”); see also
Maharaj v. State, 778 So. 2d 944, 951 (Fla. 2000)
(“Postconviction relief cannot be based on speculation
or possibility.”).
Second, Defendant alleges counsel was deficient
for failing to challenge the admission of a shard of
glass containing Defendant’s DNA because of
discrepancies as to how it was collected.
29

“Before a physical object connected with the
commission of a crime may properly be admitted in
evidence there must be a showing that such object is
in substantially the same condition as when the crime
was committed.” Gallego v. United States, 276 F.2d
914, 917 (9th Cir. 1960); accord Robinson v. State, 325
So. 2d 427, 429 (Fla. 1st DCA 1976). “In order to bar
the introduction of evidence due to a gap in the chain
of custody, the defendant must show that there was a
probability of tampering with the evidence, and a mere
possibility of tampering is insufficient.” Nimmons v.
State, 814 So.2d 1153, 1155 (Fla. 5th DCA 2002).
Nothing in the record indicates the bloodstained shard was tampered with after it was
discovered. It was found shortly after the break in, and
officers took possession of it almost immediately. (Ex.
A at 199; Ex. B at 44-61.) Any inconsistencies
regarding its discovery would go to its evidentiary
weight, not its admissibility. Hildwin v. State, 141 So.
3d 1178, 1187 (Fla. 2014). Counsel brought these
inconsistencies to the jury’s attention and argued for
them to give the shard little weight. (Ex. B at 161-66.)
Accordingly, Defendant is not entitled to relief on
Ground One.
Ex. F1, Order Denying Defendant’s Motion for Postconviction Relief (Order) at
2-3 (footnote omitted).9 The postconviction court denied relief and the First
DCA per curiam affirmed the denial of relief without a written opinion. To the
extent that the First DCA decided the claim on the merits, the Court will

9

The Court references the page numbers of this document, Order.

30

address the claim in accordance with the deferential standard for federal court
review of state court adjudications. After a review of the record and the
applicable law, the Court concludes that the state court’s adjudication of this
claim was not contrary to clearly established federal law, 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. Thus, Petitioner is not entitled to
relief on the basis of this claim.
Nevertheless, even if the appellate court’s adjudication of the claim is
not entitled to deference, Petitioner’s ineffectiveness claim is without merit.
His ineffectiveness claim is without merit because he has shown neither
deficient performance nor resulting prejudice. Accordingly, he is not entitled
to federal habeas relief on Ground Five.
Through cross-examination of the victim, defense counsel Patricia Rado
established that the perpetrator did not grab a towel until the very end, right
before he departed. Ex. B3 at 7. Further, the victim admitted that she never
saw the perpetrator bleeding inside of her home and never found blood in her
home. Id. at 8. Ms. Rado also impeached the victim’s testimony with her
deposition, clarifying that the glass shard with blood was found outside on the
31

patio. Id. at 9-10. In closing argument, Ms. Rado homed in on the discrepancies
in the state’s witnesses’ testimonies. Id. at 154-67. Ms. Rado focused her crossexamination on the discrepancies in testimony concerning the location of the
glass shard, how and when the shard was collected, and the “confusion as to
what happened after the glass was found.” Id. at 163-64. Ms. Rado argued that
there could have been contamination as there certainly were problems with
collection of evidence and discrepancies in testimony. Id. at 164. With regard
to the cuts on Petitioner’s arm, Ms. Rado effectively argued there were two
different sets of cuts, and the perpetrator was not actively bleeding and there
were not pools of blood at the scene nor was the perpetrator wiping up blood.
Id. at 164-66.
Finally, to the extent Petitioner concedes procedural default, he argues
his procedural default should be excused based on the reasoning of Martinez
because he did not have post-conviction counsel. Reply at 6. Apparently,
Petitioner contends that the procedural default was caused by the lack of postconviction counsel, the collateral proceeding was the first opportunity to raise
the procedurally defaulted claim, and the procedurally defaulted claim has
some merit. See Martinez 566 U.S. at 17.

32

Martinez provides a narrow, equitable, non-constitutional exception to
the holding in Coleman. Thus, Petitioner must demonstrate the claim raised
has some merit.

Martinez, 566 U.S. at 14. Upon review, the underlying

ineffectiveness claim at issue lacks merit; therefore, Petitioner has not
demonstrated that he can satisfy an exception to the procedural bar. As
Petitioner has failed to demonstrate the underlying ineffective assistance of
counsel claim is a substantial one, the narrow exception set forth in Martinez,
566 U.S. at 17, is inapplicable and does not excuse the procedural default of
this claim. See Clark v. Comm. Ala. Dep’t of Corr., 988 F.3d 1326, 1330 (11th
Cir. 2021) (“Martinez is of no help because [Petitioner] has not presented a
‘substantial claim’ that his trial counsel rendered ineffective assistance[.]”),
cert. denied, 142 S. Ct. 1134 (2022). Petitioner has failed to establish cause for
the procedural default of parts of his claim raised in Ground Five and the Court
finds Petitioner’s default is not excused.
F. Ground Six
As Ground Six, Petitioner alleges he received the ineffective assistance
of counsel based on counsel’s failure to secure an expert to establish
contamination and tampering of the crime scene. Petition at 14. His stated
concerns are the location of the bat on the table when the victim testified she
33

placed it inside of the door’s track, and Alan Cavin’s testimony that he found
the glass shard with blood (DNA) after the crime scene technician left. Id.
In ground two of his amended postconviction motion, Petitioner alleged
a comparable claim of ineffective assistance of counsel, but Petitioner made no
mention of the bat. Ex. F1. See Response at 18. The Court finds Petitioner did
not exhaust the claim concerning the bat raised in Ground Six. Because any
future attempt to exhaust it would be futile, the claim is procedurally
defaulted. As Petitioner is procedurally barred from raising this contention, he
must demonstrate cause and prejudice. Petitioner has failed to establish cause
and prejudice or that a fundamental miscarriage of justice will result if the
Court fails to address this claim on its merits. The Court further finds this is
not an extraordinary case as Petitioner has not made a showing of actual
innocence rather than mere legal innocence. As such, the Court finds that this
claim raised in Ground Six is procedurally defaulted and the fundamental
miscarriage of justice exception is inapplicable. Petitioner’s procedural default
bars this Court’s review of this particular claim under Ground Six.
To the extent Petitioner concedes procedural default, he argues his
procedural default should be excused based on the reasoning of Martinez
because he did not have post-conviction counsel. Reply at 6. Martinez provides
34

a narrow, equitable, non-constitutional exception to the holding in Coleman
and Petitioner must demonstrate the claim raised has some merit. Martinez,
566 U.S. at 14. Here, the underlying ineffectiveness claim at issue lacks merit.
As such, Petitioner has not demonstrated that he can satisfy an exception to
the procedural bar. As Petitioner has failed to demonstrate the underlying
ineffective assistance of counsel claim is a substantial one, the narrow
exception set forth in Martinez is inapplicable and does not excuse the
procedural default of this claim. Petitioner has failed to establish cause for the
procedural default of the part of his claim raised in Ground Six concerning the
bat and the Court finds Petitioner’s default is not excused.
As for the remainder of Ground Six, the postconviction court summarily
denied the claim that counsel was ineffective for failing to secure an expert.
Ex. F1, Order. The court held:
In Ground Two, Defendant alleges counsel was
ineffective for failing to obtain an expert in crime scene
investigations. Specifically, Defendant complains
counsel was deficient because an expert would have
provided evidence that the crime scene had been
contaminated. Defendant claims prejudice because
inculpatory evidence would not have been admitted
had counsel obtained an expert.
Defendant is not entitled to relief because he has
failed to allege any facts which would indicate a
reasonable probability of tampering, and nothing in
35

the record supports his claim. When determining
whether or not evidence has been tampered with, this
Court must first look to the chain of custody.
Armstrong v. State, 73 So. 3d 155, 172 (Fla. 2011)
(“Relevant physical evidence is admissible unless
there is an indication of probable tampering. This is a
test for determining whether the chain of custody is
established.” (internal quotations and citations
omitted)). “[A] sufficient showing of the chain of
custody is made where the object has been kept in
proper custody since the time it was under possession
and control until the time it was produced at trial.” Id.
In Defendant’s case, there were no gaps in the
chain of custody. A friend of the victim found blood on
a shard of glass while sweeping. (Ex. A at 199.) the
victim called the police and informed them about the
discovery. (Ex. A at 199.) An officer who had forgotten
his notebook returned to the victim’s home. (Ex. B at
44-45.) He called for a detective. (Ex. B at 58.) When
the detective arrived, he photographed the shard and
swabbed the blood. (Ex. B at 58.) He put the shard in
a plastic bag, initialed it, and had the bag placed in the
property room. (Ex. B at 58.) He did the same for the
swab, but placed it in an envelope instead of a plastic
bag. (Ex. B at 60-61.) A DNA analyst from the Florida
Department of Law Enforcement tested the swab for
blood and recovered a full DNA profile. (Ex. B at 99.)
The blood matched Defendant. (Ex. B at 100-01.) At
trial, the detective identified both the shard and the
swab as those he had placed into evidence. (Ex. B at
60-61.) Because both the shard of glass and the bloody
swab were in the possession and control of law
enforcement from the moment they were obtained
until trial, Defendant has failed to demonstrate either
a break in the chain of custody or an indication of
tampering. Id.
36

Ex. F1, Order at 3-5.
The postconviction court recognized, even assuming arguendo that the
chain of custody was broken or not established, Petitioner had not adequately
demonstrated a reasonable probability of tampering. Id. at 5. In addition, the
postconviction court noted, “any inconsistencies regarding the evidence’s
discovery would go to weight, not admissibility” thereby leaving it up to the
jury to determine the strength of the state’s case. Id. As such, the court
concluded “there is not reasonable probability that the outcome of Defendant’s
trial would have been different had counsel retained an expert.” Id.
The First DCA affirmed. Ex. H4. Thus, to the extent that the First DCA
decided the claim on the merits, the Court will address the claim in accordance
with the deferential standard for federal court review of state court
adjudications. After a review of the record and the applicable law, the Court
concludes that the state court’s adjudication of this claim was not contrary to
clearly established federal law, 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. Thus, Petitioner is not entitled to relief on the basis of this claim.

37

Nevertheless, even if the appellate court’s adjudication of the claim is not
entitled to deference, Petitioner’s ineffectiveness claim is without merit.
Initially, the Court recognizes there is no general duty to retain expert
witnesses in order to perform effectively. Richter, 562 U.S. at 111. Even when
assuming arguendo defense counsel was somehow deficient in failing to secure
and call an expert in crime scene investigations, it could not have prejudiced
Petitioner because there is no reasonable probability that the outcome of his
trial would have been different.
Also, defense counsel used other competent means to challenge the
state’s witnesses’ testimony. The record demonstrates there were other ways
counsel effectively performed within the wide range of reasonable professional
assistance under Strickland. Indeed, through cross-examination defense
counsel challenged the state’s witnesses’ accounts of their stories and raised
the matter again during closing argument. As such, the record makes it clear
that Ms. Rado drew the jury’s attention to the potential weaknesses in the
state’s offered version of events and the belated discovery and handling of
evidence.
To prevail on a claim of ineffective assistance of counsel, a petitioner
must demonstrate both deficient performance and prejudice. The Court is not
38

convinced that trial counsel performed deficiently under these circumstances.
Even assuming arguendo deficient performance by counsel, Petitioner has not
shown any resulting prejudice. Petitioner has not shown a reasonable
probability exists that the outcome of the case would have been different if
counsel had performed differently. For all of the foregoing reasons, Petitioner
is not entitled to habeas relief on the claim in Ground Six.
G. Ground Seven
As Ground Seven, Petitioner alleges he received the ineffective
assistance of counsel based on counsel’s failure to advise Petitioner regarding
jury selection or by misadvising Petitioner concerning jury selection. Petition
at 16. Under this ground, Petitioner raises two contentions: (1) counsel told
him there was no legal basis to strike Nora Miles just because she had family
ties to law enforcement; and (2) counsel never advised him he was entitled to
a jury of his peers, meaning closer in age to Petitioner’s age at trial: 29 years.
Id.
Respondents contend this ground is partially unexhausted as Petitioner
abandoned the second sub-claim (jury of his peers) on appeal of the
postconviction order. Response at 19-21. He did raise this issue in ground three

39

of his postconviction motion. Ex. F1, Motion for Postconviction Relief (Motion)
at 13-15.10 He did not, however, pursue the matter on appeal. Ex. H2 at 16-17.
Respondents submit that Petitioner did not properly exhaust this subclaim in Ground Seven because he failed to invoke one complete round of the
state’s appellate review process. Response at 20-21. According to Respondents,
Petitioner abandoned the claim on appeal when he failed to raise it in his initial
brief, and therefore it is procedurally barred from federal habeas review. Id. at
20. In Darity v. Sec’y, Dep’t of Corr., 244 F. App’x 982, 984 (11th Cir. 2007), the
Eleventh Circuit found a district court erred in determining a petitioner’s
ineffectiveness claim was procedurally barred because he failed to raise it on
appeal of the summary denial of his Rule 3.850 motion. However, the Eleventh
Circuit’s opinion relied on Webb v. State, 757 So. 2d 608 (Fla. 5th DCA 2000),
which the Fifth District Court of Appeal subsequently overturned. See Ward
v. State, 19 So. 3d 1060, 1061 (Fla. 5th DCA 2009) (finding that an appellant,
who challenged the summary denial of his Rule 3.850 motion, abandoned
issues not raised in his appellate brief). See also Maxwell v. State, 169 So. 3d
1264, 1265 n.1 (Fla. 5th DCA 2015) (holding two of the three grounds are
deemed abandoned as the defendant failed to raise them in his appellate brief,

10

The Court references the page numbers of this document, Motion.

40

citing Ward). Here, Petitioner filed a pro se brief on appeal of the
postconviction court’s summary denial of his postconviction motion, but he did
not raise the instant claim in his brief. Ex. H2. Therefore, Petitioner seemingly
failed to exhaust the sub-claim in Ground Seven. Because any future attempt
to exhaust the claim would be futile, it is procedurally defaulted. Petitioner has
demonstrated neither cause and prejudice to excuse his lack of exhaustion nor
demonstrated a fundamental miscarriage of justice has occurred. As such, the
sub-claim in Ground Seven is due to be denied as procedurally barred.
To the extent that the First DCA decided the claim on the merits, Ex.
H4, the Court will address the claim in accordance with the deferential
standard for federal court review of state court adjudications. After a review of
the record and the applicable law, the Court concludes that the state court’s
adjudication of this claim was not contrary to clearly established federal law,
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. Thus, Petitioner is not
entitled to relief on the basis of this claim.
Relying on the prejudice prong of Strickland, the postconviction court
rejected Petitioner’s claim that counsel was ineffective for misadvising
41

Petitioner during voir dire, finding Petitioner “failed to demonstrate prejudice
because there is no indication that any of the jurors were actually biased.” Ex.
F1, Order at 6. During voir dire, after Nora Miles stated she has a brother-inlaw that works for the Jacksonville Sheriff’s Office, the court inquired as to
whether that in any way would affect her ability to serve fairly and impartially.
Ex. B2 at 41-42. Ms. Miles responded in the negative. Id. at 42. The
postconviction court concluded that her familial ties to law enforcement,
standing alone, were insufficient to demonstrate prejudice. Ex. F1, Order at 6.
Further, the court found that Petitioner’s assertion that had counsel exercised
her peremptory challenges differently there would have been a different result
amounted to nothing more than mere speculation on Petitioner’s part. Id.
Here, Petitioner’s claim is too speculative to establish prejudice. See
Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (conclusory allegation
lacking factual substantiation will not support an ineffective assistance of
counsel claim). Petitioner made no showing that the juror was actually biased
or incompetent. See Fennell v. Sec’y, Fla. Dep’t of Corr., 582 F. App’x 828, 834
(11th Cir. 2014) (rejecting a jury-selection Strickland claim finding the
petitioner did not demonstrate the juror was actually biased against him). “[A]
petitioner, in the post-conviction context, has the additional burden of meeting
42

the actual bias requirement that Florida employs.” Shellito v. Sec’y, Fla. Dep’t
of Corr., No. 3:18-v-868-J-39JRK, 2020 WL 4428475, at *12 (M.D. Fla. July 31,
2020) (citation omitted). See Carratelli v. State, 961 So. 2d 312, 323 (Fla. 2007).
As such, Petitioner failed to meet his burden. Upon review, the state court
correctly applied Strickland. Thus, Petitioner is not entitled to relief on the
basis of this claim.
H. Ground Eight
As Ground Eight, Petitioner alleges trial counsel rendered ineffective
assistance by failing to object to a non-expert opinion given by Detective
Jessica Maynard concerning whether the cuts on Petitioner’s arm were similar
to those from breaking a glass door or window and by failing to retain an
independent expert to challenge the state’s theory. Petition at 18.
Respondents contend this ground is unexhausted as Petitioner
abandoned the claim on appeal of the postconviction order. Response at 21-22.
He did raise this issue in ground four of his amended postconviction motion.
Ex. F1, Amended Motion for Post Conviction Relief (Amended Motion) at 1820.11 However, he did not brief the matter on appeal. Ex. H2.

11

The Court references the page numbers of this document, Amended Motion.

43

Respondents argue that Petitioner did not properly exhaust this claim of
ineffective assistance of counsel because he failed to invoke one complete round
of the state’s appellate review process. Response at 21-22. According to
Respondents, Petitioner abandoned the claim on appeal when he failed to raise
it in his initial brief, and therefore it is procedurally barred from federal habeas
review. Id. at 21. Petitioner filed a pro se brief on appeal of the postconviction
court’s summary denial of his postconviction motion, but he did not raise the
instant claim in his brief. Ex. H2. Therefore, Petitioner seemingly failed to
exhaust the claim in Ground Eight. Because any future attempt to exhaust the
claim would be futile, it is procedurally defaulted. Petitioner has demonstrated
neither cause and prejudice to excuse his lack of exhaustion nor demonstrated
a fundamental miscarriage of justice has occurred. As such, the claim in
Ground Eight is due to be denied as procedurally barred.12
To the extent that the First DCA decided the claim on the merits, Ex.
H4, the Court will address the claim in accordance with the deferential

To the extent Petitioner relies on Martinez contending that his lack of
postconviction counsel constitutes cause and prejudice to overcome the procedural
bar, Reply at 6, Martinez does not apply where Petitioner raised the procedurally
defaulted claim in his postconviction motion but abandoned it on appeal. See
Martinez, 566 U.S. at 16 (“The holding in this case does not concern attorney errors
in other kinds of proceedings, including appeals from initial-review collateral
proceedings[.]”).
12

44

standard for federal court review of state court adjudications. After a review of
the record and the applicable law, the Court concludes that the state court’s
adjudication of this claim was not contrary to clearly established federal law,
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. Thus, Petitioner is not
entitled to relief on the basis of this claim.
The postconviction court rejected Petitioner claim that counsel was
ineffective for failure to object. Ex. F1, Order at 6-7. The court explained:
A lay witness may give opinion on a person’s
physical appearance as long as the opinion is based
upon the witness’s observation. Bush v. State, 809 So.
2d 107, 119-20 (Fla. 4th DCA 2002). The State asked
detective Maynard if she was “able to view
[Defendant’s] body to see if he had any cuts that would
have been consistent with how the victim described
the perpetrator wrapped his right arm.” (Ex. B at 7172.) She replied, “Yes, I did.” (Ex. B at 72.) Her
response was not opinion testimony, as she stated that
she was able to observe Defendant. (Ex. B at 72.)
Assuming arguendo that her response could be
interpreted as opinion testimony, her testimony that
Defendant had cuts on his arm that could have been
caused by shattered glass was not objectionable
because it was the type of testimony a lay person may
give regarding their observations. Id.
Ex. F1, Order at 6-7.
45

The record demonstrates the following. The prosecutor inquired of
Detective Maynard whether she came into contact with Petitioner on April 20,
2014. Ex. B3 at 71. She responded in the affirmative. Id. The prosecutor asked
Detective Maynard if she were “able to view his body to see if he had any cuts
that would have been consistent with how the victim described the perpetrator
wrapped his right arm?” Id. at 71-72. Again, Detective Maynard responded yes
to what she had observed. Id. at 72. Based on this record, Detective Maynard
did not give an expert opinion as to the nature and cause of Petitioner’s
injuries. Thus, counsel was not ineffective for failure to object to the detective’s
testimony. To the extent this testimony could be perceived to be a comment as
to whether the injury could be caused by shattered glass, Detective Maynard’s
testimony did not require a special skill as her testimony was based upon her
observations. As such, Petitioner is not entitled to habeas relief.
The postconviction court also rejected the contention that Petitioner
should have secured an expert to refute Detective Maynard’s testimony. Ex.
F1, Order at 7. The court concluded that even if a hypothetical expert would
have testified consistently with Petitioner’s theory of the defense, the court
concluded, “there is no reasonable probability that the ultimate outcome of
Defendant’s trial would have been different based upon the evidence of guilt
46

presented by the State.” Id. As noted by the postconviction court, there was
considerable evidence against Petitioner, including his DNA. Id.
As previously noted, there is no general duty to retain expert witnesses
in order to perform effectively. Richter, 562 U.S. at 111. Ms. Rado focused on
the victim’s testimony that she never saw the perpetrator bleeding inside of
her home and never saw or found blood in her home. Ms. Rado also made
effective argument concerning the cuts on Petitioner’s arm. Ms. Rado’s
performance was within the broad range of reasonably competent assistance.
Also, Petitioner has not met the prejudice prong of Strickland. As such,
Petitioner is not entitled to habeas relief on Ground Eight.
I. Ground Nine
As Ground Nine, Petitioner alleges trial counsel rendered ineffective
assistance by failing to object to improper comments by the prosecutor. Petition
at 20. Respondents contend this ground is unexhausted as Petitioner
abandoned the claim on appeal of the postconviction order. Response at 22-23.
He did raise this issue in ground five of his postconviction motion. Ex. F1 at
17. However, he did not brief the matter on appeal. Ex. H2.
Respondents contend that Petitioner did not properly exhaust this claim
of ineffective assistance of counsel because he failed to invoke one complete
47

round of the state’s appellate review process. Response at 22-23. According to
Respondents, Petitioner abandoned the claim on appeal when he failed to raise
it in his initial brief, and therefore it is procedurally barred from federal habeas
review. Id. Here, Petitioner filed a pro se brief on appeal of the postconviction
court’s summary denial of his postconviction motion, but he did not raise the
instant claim in his brief. Ex. H2. Therefore, Petitioner seemingly failed to
exhaust the claim in Ground Nine. Because any future attempt to exhaust the
claim would be futile, it is procedurally defaulted. Petitioner has demonstrated
neither cause and prejudice to excuse his lack of exhaustion nor demonstrated
a fundamental miscarriage of justice has occurred. As such, the claim in
Ground Nine is due to be denied as procedurally barred.13
To the extent that the First DCA decided the claim on the merits, Ex.
H4, the Court will address the claim in accordance with the deferential
standard for federal court review of state court adjudications. After a review of
the record and the applicable law, the Court concludes that the state court’s

To the extent Petitioner relies on Martinez contending that his lack of
postconviction counsel constitutes cause and prejudice to overcome the procedural
bar, Reply at 6, Martinez does not apply where Petitioner raised the procedurally
defaulted claim in his postconviction motion but abandoned it on appeal. See
Martinez, 566 U.S. at 16.
13

48

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. Thus, Petitioner is not
entitled to relief on the basis of this claim.
The postconviction court rejected Petitioner’s claim that counsel was
ineffective for failure to object to the State’s closing argument. Ex. F1, Order
at 7-8. In particular, Petitioner argued his counsel performed deficiently in
failing to object to the State’s contention that Petitioner sexually assaulted the
victim. Id. at 7. The court found that because the State properly argued that
Petitioner committed a sexual battery based on the evidence at trial, “counsel
was not deficient for failing to object.” Id. at 8.
In particular, the victim testified that the perpetrator, armed with a
shotgun forced the victim to lie on the floor and place her fingers in her vagina.
Id. This evidence supports a conviction for sexual assault with a deadly
weapon. In Florida,
[a] finger is an “object” within the context of the sexual
battery statute. Harrison v. State, 360 So. 2d 421
(Fla.1978). Thus, the coerced insertion of a woman's
own fingers in her intimate body orifice, against her
will and at the command of a person that is
49

intimidating her, is prohibited by the sexual battery
statute.
Kirby v. State, 625 So. 2d 51, 55 (Fla. 3d DCA 1993).
There was no prosecutorial misconduct as the prosecutor’s argument was
based on a reasonable inference from the evidence presented at trial. The
prosecutor’s argument constituted a fair and reasonable inference from the
evidence considering the comments in context, along with the entirety of the
evidence presented at trial. As such, defense counsel was not ineffective for
failure to object and Ground Nine is due to be denied.
J. Ground Ten
As Ground Ten, Petitioner alleges trial counsel rendered ineffective
assistance by failing to object to an erroneous jury instruction for attempted
sexual battery and move for an instruction for the correct necessarily lesser
included offense. Petition at 22. In ground six of his postconviction motion,
Petitioner alleged a similar claim of ineffective assistance of counsel. The
postconviction summarily denied this ground finding:
The jury found Defendant guilty of Armed
Sexual Battery. (Ex. C.) Thus, he was not prejudiced
by an instruction on attempt. Cf Pepitone v. State, 846
So. 2d 640, 642 (Fla. 2d DCA 2003) (“When the
defendant is improperly convicted of such lesser
offense, the conviction must be reversed.”). Further,
Defendant was not prejudiced by counsel’s failure to
50

request an instruction on the lesser-included offense of
battery because this Court did instruct the jury on
lesser included offenses but the jury chose [sic]
convicted him of the greater crime. Sanders v. State,
946 So. 2d 953, 959-60 (Fla. 2006) (“[A]ny finding of
prejudice resulting from defense counsel’s failure to
request an instruction on lesser-included offenses
necessarily would be based on a faulty premise: that a
reasonable probability exists that, if given the choice,
a jury would violate its oath, disregard the law, and
ignore the trial court’s instructions.”). Further,
because the only evidence of battery was the sexual
battery, there is no reasonable probability the
ultimate outcome of Defendant’s trial would have been
different had this Court instructed the jury on battery
as a separate offense. Accordingly, Defendant is not
entitled to relief on Ground Six.
Ex. F1, Order at 8-9 (footnote omitted). Also, the court included a footnote
explaining that during the charge conference, counsel said she had conferred
with her client concerning the lack of a battery instruction and he agreed that
battery would be inapplicable. Id. at 9 n.4. See Ex. B3 at 135. The First DCA
per curiam affirmed the denial of relief without a written opinion. Ex. H4.
Respondents contend that Petitioner did not properly exhaust this claim
of ineffective assistance of counsel because he failed to present any federal
constitutional argument in support of his claim in his appeal of the
postconviction order. Response at 24. According to Respondents, Petitioner
deprived the state courts of their one full opportunity to resolve any
51

constitutional issues. Id. Upon review, Petitioner filed a pro se brief on appeal
of the postconviction court’s summary denial of his postconviction motion, and
he did raise the instant claim in his brief. Ex. H2 at 17-19. Therefore, Petitioner
exhausted the claim in Ground Ten.
Next, the Court will address the claim in accordance with the deferential
standard for federal court review of state court adjudications. After a review of
the record and the applicable law, the Court concludes that the state court’s
adjudication of this claim was not contrary to clearly established federal law,
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. Thus, Petitioner is not
entitled to relief on the basis of this claim.
Alternatively, Petitioner’s ineffectiveness claim is without merit because
he has shown neither deficient performance nor resulting prejudice.
Accordingly, he is not entitled to federal habeas relief on the claim in Ground
Ten.
During the charge conference, the following discussion took place
concerning armed sexual battery and attempted armed sexual battery or
attempted sexual battery. Ex. B3 at 133. The State noted the decision had been
52

made to delete battery because the offender never touched or struck the victim.
Id. Ms. Rado said she was not going to argue battery. Id. After conferring with
Petitioner, Ms. Rado told the court that she had spoken with Petitioner and
the defense decided, “based on the theory of the case and the evidence that we
put forward, it’s not really an applicable lesser included anyway.” Id. at 135.
Thus, as noted in the ruling of the postconviction court, Petitioner agreed to
this strategy and the omission of the lesser included instruction.
The record shows the trial court did not give a battery instruction as a
lesser included instruction of armed sexual battery, as agreed upon by the
parties. Ex. B3 at 185-88. Defense counsel affirmatively waived the issue
before the trial court, after discussing the matter with Petitioner and
announcing his agreement. Ms. Rado properly assessed the situation and
realized it was in her client’s best interest to not request a battery instruction
when there was no evidence that the offender touched or struck the victim. The
parties properly considered and assessed whether the lesser included offense
should be given and decided that it should not be charged to the jury. As such,
counsel cannot be deemed to have performed deficiently in this regard.
Not only has Petitioner failed to satisfy the performance prong, but he
also failed to satisfy the prejudice prong of Strickland. Petitioner was not
53

prejudiced as the jury found him guilty of the greatest offense, armed sexual
battery. Ex. B4 at 413-14. Apparently, Petitioner is contending that the jury
should have been given the opportunity to employ its inherent power to pardon
Petitioner by convicting him of the lesser offense of battery even though the
jury found Petitioner guilty of armed sexual battery.14 Petitioner cannot satisfy
the prejudice prong of Strickland by claiming the possibility of a jury pardon
based on arbitrariness, whimsy, caprice, nullification, and leniency. The Court
presumes a jury will act according to law. Strickland, 466 U.S. at 694. The jury
determined that the State proved its armed sexual battery case; therefore,
Petitioner “has no entitlement to the luck of a lawless decisionmaker[.]” Id. at
695.
Therefore, even assuming deficiency on the part of counsel, Petitioner
has suffered no prejudice by this alleged deficiency. There is no reasonable
probability that, but for counsel’s alleged unprofessional errors, the result of
the proceeding would have been different. For it to be different, the Court
would have to assume that the jury would “violate its oath, disregard the law,

The trial court instructed the jury: “[i]f you return a verdict of guilty, it
should be for the highest offense which has been proven beyond a reasonable doubt.”
Ex. B3 at 194.
14

54

and ignore the trial court’s instructions.” Sanders, 946 So. 2d at 959. As such,
Petitioner cannot satisfy the prejudice prong of Strickland.
As Petitioner was convicted of armed sexual battery, he was not
prejudiced by counsel’s failure to object to the attempted sexual battery
instruction. Assuming arguendo deficient performance, Petitioner cannot
demonstrate prejudice. As such, he cannot meet the second prong of Strickland.
Therefore, he is not entitled to habeas relief on Ground Ten.
K. Ground Eleven
As Ground Eleven, Petitioner alleges trial counsel rendered ineffective
assistance by misadvising Petitioner regarding jury instructions and failing to
request necessary lesser included instructions. Petition at 24. He argues that
the instructions for burglary, a lesser included offense to armed burglary, and
robbery, a lesser included offense to armed robbery, should have been included
in the instructions. Id.
Respondents contend that Petitioner did not properly exhaust part of
this claim of ineffective assistance of counsel due to his abandonment of the
burglary issue. Response at 25. According to Respondents, Petitioner deprived
the state courts of their one full opportunity to resolve any constitutional issues
by invoking one complete round of the appellate review process. Id. Petitioner
55

filed a pro se brief on appeal of the postconviction court’s summary denial of
his postconviction motion, and sufficiently raised the instant claim in his brief
to support exhaustion of state court remedies as he referred to the court’s
inclusion of the lesser included offenses of theft for armed robbery and trespass
for burglary, but the omission of others. Ex. H2 at 18-19.
Nevertheless, based on the record, Petitioner’s contention has no merit.
The court instructed the jury on robbery and burglary. Ex. B3 at 174-84. The
jury had the option to find Petitioner guilty of simple robbery and burglary.
Ex. B1 at 24-26. The jury found Petitioner actually possessed a firearm during
the commission of the offenses of robbery and burglary. Id. at 24-25. The jury
also found Petitioner committed an assault or battery upon the victim during
the commission of the offense of burglary. Id. at 25. The court gave the
instructions, but the jury found Petitioner guilty of the greater crimes. As such,
Petitioner has not satisfied the prejudice prong of Strickland.
The postconviction court denied the claim raised in ground seven of
Petitioner’s postconviction motion. Ex. F1, Order at 9. The First DCA affirmed.
Ex. H4. The Court finds the state court’s determination is consistent with
federal precedent. As such, it is entitled to AEDPA deference. It is based on a
reasonable determination of the facts and a reasonable application of the law.
56

The state court’s adjudication is not contrary to or an unreasonable application
of Strickland or based on an unreasonable determination of the facts. As such,
the decision is entitled to deference and Ground Eleven is due to be denied.
L. Ground Twelve
As Ground Twelve, Petitioner alleges trial counsel rendered ineffective
assistance by failing to object to the commission of a double jeopardy violation.
Petition at 26. He argues he should not have been convicted of both burglary
with a battery and sexual battery as only one battery occurred. Id. In ground
eight of his postconviction motion, Petitioner alleged a similar claim of
ineffective assistance of counsel. The postconviction summarily denied this
ground finding it was without merit citing Young v. State, 762 So. 2d 595, 595
(Fla. 5th DCA 2000); Perez v. State, 138 So. 3d 1098, 1101 (Fla. 1st DCA 2014);
and Tambriz-Ramirez v. State, 248 So. 3d 1087 (Fla. 2018). Ex. F1, Order at 9.
The First DCA per curiam affirmed the denial of relief without a written
opinion. Ex. H4.
Respondents contend that Petitioner did not properly exhaust this claim
of ineffective assistance of counsel because he failed to present any federal
constitutional argument in support of his claim in his appeal of the
postconviction order. Response at 26. According to Respondents, Petitioner
57

deprived the state courts of their one full opportunity to resolve any
constitutional issues. Id. Upon review, Petitioner filed a pro se brief on appeal
of the postconviction court’s summary denial of his postconviction motion, and
he did raise the instant claim in his brief. Ex. H2 at 7-9. Thus, Petitioner
exhausted the claim raised in Ground Twelve.
Next, the Court will address the claim in accordance with the deferential
standard for federal court review of state court adjudications. After a review of
the record and the applicable law, the Court concludes that the state court’s
adjudication of this claim was not contrary to clearly established federal law,
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. Thus, Petitioner is not
entitled to relief on the basis of this claim.
Counsel did not perform deficiently for failing to object to a double
jeopardy violation as the offense of burglary includes the element of entering a
dwelling, which sexual battery does not, and sexual battery requires sexual
contact, which burglary does not. See Rockett v. Sec’y, Dep’t of Corr., No. 8:08cv-1417-T-23EAJ, 2014 WL 3809146, at *26 (M.D. Fla. Aug. 1, 2014) (not
reported in F.Supp.3d). Indeed, “burglary with assault or battery is not a lesser
58

included offense of felony battery or sexual battery; and sexual battery is not
a lesser included offense of felony battery or burglary with assault or battery.”
Watson v. Buss, No. 4:08cv428/SPM/EMT, 2011 WL 4102776, at *17 (N.D. Fla.
Mar. 15, 2011) (not reported in F.Supp.2d) (footnote omitted), report and
recommendation adopted, 2011 WL 4090681 (N.D. Fla. Sept. 14, 2011). As this
Court related:
Next, Petitioner alleges that his convictions for
both burglary of a dwelling with battery and sexual
battery violate the Double Jeopardy Clause of the
Fifth Amendment. As one of its three separate
protections, the constitutional guarantee against
double
jeopardy
“protects
against
multiple
punishments for the same offense.” North Carolina v.
Pearce, 395 U.S. 711, 717 (1969).
“[T]o determine whether a single criminal
incident may be cumulatively punished under
separate statutory provisions,” the Court applies the
well-known test from Blockburger v. United States,
284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
Williams v. Singletary, 78 F.3d 1510, 1513 (11th Cir.
1996). The Blockburger test “inquires whether each
offense contains an element not contained in the other;
if not, they are the ‘same offen[s]e’ and double jeopardy
bars
additional
punishment
and
successive
prosecution.” United States v. Dixon, 509 U.S. 688,
696, 113 S. Ct. 2849, 125 L. Ed.2d 556 (1993). The
crime of sexual battery includes an element not
included in first degree burglary with a battery: sexual
contact.

59

The Florida Supreme Court used the
Blockburger test and arrived “at the conclusion that
first degree burglary and sexual battery could be
separately and cumulatively punished.” Wicker v.
State, 462 So. 2d 461, 463 (Fla. 1985). Additionally,
the Fifth District has upheld dual convictions for
sexual battery and burglary with a battery stemming
from the same sexual battery. Young v. State, 762
So.2d 595 (Fla. 5th Dist. Ct. App. 2000). A conviction
for both burglary with a battery and sexual battery
does not violate the Double Jeopardy Clause and
Petitioner is entitled to no relief on Claim 2.
Caldwell v. Att’y Gen., No. 5:08-cv-151-Oc-10GJK, 2011 WL 2938089, at *4
(M.D. Fla. July 19, 2011) (not reported in F.Supp.2d) (footnote omitted), aff'd
sub nom. Caldwell v. Att’y Gen., State of Fla., 502 F. App’x 895 (11th Cir. 2012),
cert. denied, 569 U.S. 1032 (2013).
Petitioner is not entitled to habeas relief as his counsel was not
ineffective for failure to object. Ground Twelve is due to be denied.
M. Ground Thirteen
As Ground Thirteen, Petitioner alleges trial counsel rendered ineffective
assistance by failing to move for DNA testing of all evidence collected and
alleged to contain a drop of Petitioner’s DNA. Petition at 28. He contends
counsel failed to move to have the shard of glass tested, questioning whether
the swab came from the shard of glass. Id.
60

Respondents contend that Petitioner did not properly exhaust this claim
of ineffective assistance of counsel because he failed to present any federal
constitutional argument in support of his claim in his appeal of the
postconviction order. Response at 27. According to Respondents, Petitioner
deprived the state courts of their one full opportunity to resolve any
constitutional issues. Id. Here Petitioner filed a pro se brief on appeal of the
postconviction court’s summary denial of his postconviction motion, and he did
raise the instant claim in his brief. Ex. H2 at 10-12. Therefore, Petitioner
exhausted his claim of ineffective assistance of counsel raised in Ground
Thirteen.
Next, the Court will address the claim in accordance with the deferential
standard for federal court review of state court adjudications. In ground nine
of the amended postconviction motion, Petitioner alleged a comparable claim
of ineffective assistance of counsel. The postconviction summarily denied this
ground finding:
In Ground Nine, Defendant alleges counsel was
ineffective for failing to test evidence for DNA.
Specifically, Defendant claims counsel was deficient
for not having the shard of glass tested for DNA
evidence. Defendant claims prejudice because there is
a reasonable probability the ultimate outcome of his
trial would have been different had counsel had the
shard tested.
61

Defendant’s claim is wholly conclusory because
he alleges the outcome of his trial would have been
different without providing any underlying facts
which, if true, would show that the DNA testing that
was done was not reliable or why additional testing
would have produced different results. See Wolfgang
v. State, 212 So. 3d 501, 504 (Fla. 5th DCA 2017)
(citing Jones v. State, 998 So. 2d 573, 584 (Fla. 2008)).
Accordingly, Defendant is not entitled to relief on
Ground Nine. See Bannister v. United States, No[.] 0881228-CIV, 2009 WL 3561697, at *26 (S.D. Fla. Oct.
30, 2009).
Ex. F1, Order at 9-10 (footnote omitted). The First DCA per curiam affirmed.
Ex. H4.
After a review of the record and the applicable law, the Court concludes
that the state court’s adjudication of this claim was not contrary to clearly
established federal law, 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.
Thus, Petitioner is not entitled to relief on the basis of this claim.
Of import, in Bannister v. United States, No. 08-81228-CIV, 2009 WL
3561697, at *26 - *27 (S.D. Fla. Oct. 30, 2009) (not reported in F.Supp.2d), the
United States District Court for the Southern District of Florida rejected a
comparable claim of ineffective assistance of counsel finding no deficient
62

performance or prejudice had been established pursuant to Strickland as
Petitioner failed to explain how the testing was not reliable or why additional
testing would produce a different result. The same is true of this case.
Petitioner surmises that if the shard were retested it would produce a different
result. This is simply conjecture on Petitioner’s part. Emily Haines, the DNA
analyst for the Florida Department of Law Enforcement testified the swab
from Petitioner matched the swab taken from the piece of glass. Ex. B3 at 100.
Further, Ms. Haines attested that “[t]he frequency of the DNA profile I
obtained, which is from the swab from the glass, from enumerated individuals
is approximately one in 18 quintillion.” Id. at 107.
“The likelihood of a different result must be substantial, not just
conceivable.” Richter, 562 U.S. at 112. Under these circumstances, it is purely
speculative that additional DNA testing would have provided favorable results
and testimony for Petitioner. See Diaz v. Sec’y, Fla. Dep’t of Corr., No. 2080394-CV-MIDDLEBROOKS, 2021 WL 3193170, at *6 (S.D. Fla. Apr. 30,
2021) (same), report and recommendation adopted, 2021 WL 3190923 (S.D.
Fla. July 28, 2021). Petitioner proposes an insufficient basis for relief under
Strickland. Indeed, “[s]uch speculation is plainly insufficient to establish
prejudice under Strickland.” McGuire v. Sec’y, Dep’t of Corr., No. 8:16-cv-193463

KKM-UAM, 2023 WL 6196858, *11 (M.D. Fla. Sept. 22, 2023). Petitioner’s
ineffectiveness claim is without merit because he has shown neither deficient
performance nor resulting prejudice. Accordingly, he is not entitled to federal
habeas relief on the claim in Ground Thirteen.
N. Ground Fourteen
In Ground Fourteen, Petitioner raises a claim of cumulative errors on
counsel’s part, resulting in the denial of a fair trial. Petition at 30. Petitioner
raised a comparable claim in ground ten of his postconviction motion. The court
summarily denied this ground finding, “[g]round ten is moot, as this Court has
already rejected all of his claims of error.” Ex. F1, Order at 10. The First DCA
affirmed. Ex. H4.
Respondents contend that Petitioner did not properly exhaust the claim
in Ground Fourteen because he failed to invoke one complete round of the
state’s appellate review process. Response at 28-29. According to Respondents,
Petitioner abandoned the claim on appeal when he failed to raise it in his initial
brief, and therefore it is procedurally barred from federal habeas review. Id. at
28. Here, Petitioner filed a pro se brief on appeal of the postconviction court’s
summary denial of his postconviction motion, but he did not raise the instant
claim in his brief. Ex. H2. Therefore, Petitioner seemingly failed to exhaust the
64

claim in Ground Fourteen. Because any future attempt to exhaust the claim
would be futile, it is procedurally defaulted. Petitioner has demonstrated
neither cause and prejudice to excuse his lack of exhaustion nor demonstrated
a fundamental miscarriage of justice has occurred.15 As such, the claim in
Ground Fourteen is due to be denied as procedurally barred.
To the extent that the First DCA decided the claim on the merits, Ex.
H4, the Court will address the claim in accordance with the deferential
standard for federal court review of state court adjudications. After a review of
the record and the applicable law, the Court concludes that the state court’s
adjudication of this claim was not contrary to clearly established federal law,
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. Thus, Petitioner is not
entitled to relief on the basis of this claim.
Finally and alternatively, none of Petitioner’s individual ineffectiveness
claims warrant relief; therefore, there is nothing to accumulate. See Morris v.

To the extent Petitioner relies on Martinez contending that his lack of
postconviction counsel constitutes cause and prejudice to overcome the procedural
bar, Reply at 6, Martinez does not apply where Petitioner raised the procedurally
defaulted claim in his postconviction motion but abandoned it on appeal. See
Martinez, 566 U.S. at 16.
15

65

Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012). Petitioner’s trial
counsel’s alleged errors, neither individually nor cumulatively, deprived him
of a fair trial or due process. Considering the record, the Court finds that
Petitioner is not entitled to federal habeas relief on Ground Fourteen.
Therefore, it is now
ORDERED AND ADJUDGED:
1.

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

WITH PREJUDICE.
3.

The Clerk of the Court shall enter judgment denying the Petition

and dismissing this case with prejudice.
3.

If Petitioner appeals the denial of the Petition,16 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

16

This Court should issue a certificate of appealability only if a petitioner makes "a
substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make
this substantial showing, Petitioner "must demonstrate that reasonable jurists would find
the district court's assessment of the constitutional claims debatable or wrong," Tennard v.
Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or
that "the issues presented were 'adequate to deserve encouragement to proceed further,'"
Miller-El v. Cockrell, 537 U.S. at 335-36 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4
(1983)). Upon due consideration, this Court will deny a certificate of appealability.

66

pending motions report any motion to proceed on appeal as a pauper that may
be filed in this case. Such termination shall serve as a denial of the motion.
4.

The Clerk of the Court is directed to close this case and terminate

any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 13th day of
November, 2023.

sa 11/6
c:
Christopher Watts
Counsel of Record

67