Wood v. Secretary, Department of Corrections et al
Filing
39
ORDER dismissing case Signed by Judge Roy B. Dalton, Jr. on 6/21/2017. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CHRISTOPHER J. WOOD,
Petitioner,
v.
CASE NO. 6:14-cv-1072-Orl-37KRS
SECRETARY, DEPARTMENT OF
CORRECTIONS, et al.,
Respondents.
ORDER
THIS CAUSE is before the Court on Petitioner Christopher J. Wood’s Petition for Writ of
Habeas Corpus (“Petition,” Doc. 1) pursuant to 28 U.S.C. § 2254. Respondents filed a Second
Supplemental Response to the Petition (Doc. 37). Petitioner filed a Reply to the Second
Supplemental Response to Petition (Doc. 38).
Petitioner asserts thirty-one grounds for relief. 1 For the following reasons, the Petition is
denied.
I.
PROCEDURAL HISTORY
Petitioner was charged by second amended information with kidnapping (Count One),
aggravated battery (Count Two), and six counts of sexual battery by use of great force (Counts
Three through Eight). (Doc. 15-1 at 11). A jury found Petitioner guilty as charged as to Counts
One, Four, and Five and guilty of the lesser included offense of felony battery as to Count Two
1
Petitioner asserts nineteen subparts in ground one, five subparts in ground two, and four
subparts in ground five. Petitioner also raised an additional ground of newly discovered evidence
in his Reply to the Second Supplemental Response to Petition. The Court will address each subpart
as a separate ground for relief.
Page 1 of 41
and sexual battery as to Counts Three, Six, Seven, and Eight. (Doc. 15-23 at 44-51). The state
court sentenced Petitioner to a thirty-year term of imprisonment for Count One, a five-year term
of imprisonment for Count Two, 51.75-year terms of imprisonment for Counts Four and Five, and
fifteen-year terms of imprisonment for Counts Three, Six, Seven and Eight with all sentences to
run concurrently. (Doc. 15-2 at 50-54). Petitioner appealed, and on August 5, 2008, the Fifth
District Court of Appeal of Florida (“Fifth DCA”) affirmed per curiam. (Doc. 15-2 at 94).
On September 21, 2008, Petitioner filed a motion for post-conviction relief pursuant to
Rule 3.850 of the Florida Rules of Criminal Procedure. (Doc. 15-2 at 99). The state court denied
the motion. (Doc. 15-4 at 52-67). Petitioner appealed, and the Fifth DCA affirmed per curiam.
(Doc. 15-7 at 49). Mandate issued on July 9, 2009. (Id. at 53).
On May 20, 2010, Petitioner filed a state habeas petition. (Doc. 15-7 at 56). The Fifth DCA
denied the petition. (Doc. 15-10 at 39). Petitioner filed a motion for rehearing, which was denied
on September 17, 2010. (Id. at 41).
On August 18, 2010, Petitioner filed a second Rule 3.850 motion. (Doc. 15-11 at 22). The
state court denied the motion as successive. (Doc. 15-14 at 60-65). Petitioner appealed but later
filed a notice of voluntary dismissal. The Fifth DCA dismissed the appeal on April 17, 2012. (Doc.
15-15 at 77).
Petitioner filed a third Rule 3.850 motion. The state court dismissed based on lack of
jurisdiction. (Doc. 15-29 at 32-33). Petitioner appealed, and the Fifth DCA affirmed per curiam.
(Id. at 36). Mandate issued on March 2, 2012. (Id. at 35).
On January 5, 2012, Petitioner filed a fourth Rule 3.850 motion. (Doc. Nos. 15-18 at 8199; 15-19 at 1-42). The state court denied the motion on April 23, 2012. (Doc. 15-19 at 51-54).
Petitioner appealed. (Doc. 15-19 at 80). The Fifth DCA affirmed per curiam. (Id. at 83). Mandate
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issued on August 24, 2012. (Id. at 85).
On July 11, 2012, Petitioner filed a motion for return of property and a fifth Rule 3.850
motion. (Doc. Nos. 15-19 at 87; 15-20 at 1-36, 82-93; 15-21 at 1-36). On July 22, 2013, the state
court denied both motions. (Doc. Nos. 15-20 at 47-51; 15-23 at 17-39). Petitioner appealed the
denial of the motion for return of property. (Doc. 15-20 at 59-63). The Fifth DCA affirmed per
curiam. (Doc. 15-20 at 76). Petitioner filed a motion for rehearing in which he raised arguments
concerning his motion for return of property and his fifth Rule 3.850 motion. (Doc. 28-1 at 83-85).
The Fifth DCA denied the motion. (Doc. 15-20 at 78). Mandate issued on July 15, 2014. (Id. at
80).
II.
A.
LEGAL STANDARDS
Standard Of Review Under The Antiterrorism Effective Death Penalty Act
(“AEDPA”)
Pursuant to the AEDPA, federal habeas relief may not be granted with respect to a claim
adjudicated on the merits in state court unless the adjudication of the claim:
(1)
resulted in a decision that 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)
resulted in a decision that 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). The phrase “clearly established Federal law,” encompasses only the holdings
of the Supreme Court of the United States “as of the time of the relevant state-court decision.”
Williams v. Taylor, 529 U.S. 362, 412 (2000).
“[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; the
‘contrary to’ and ‘unreasonable application’ clauses articulate independent considerations a federal
court must consider.” Maharaj v. Sec’y for Dep=t of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005).
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The meaning of the clauses was discussed by the Eleventh Circuit Court of Appeals in Parker v.
Head, 244 F.3d 831, 835 (11th Cir. 2001):
Under the “contrary to” clause, a federal court may grant the writ if the state court
arrives at a conclusion opposite to that reached by [the United States Supreme
Court] on a question of law or if the state court decides a case differently than [the
United States Supreme Court] has on a set of materially indistinguishable facts.
Under the ‘unreasonable application’ clause, a federal habeas court may grant the
writ if the state court identifies the correct governing legal principle from [the
United States Supreme Court’s] decisions but unreasonably applies that principle
to the facts of the prisoner’s case.
Even if the federal court concludes that the state court applied federal law incorrectly, habeas relief
is appropriate only if that application was “objectively unreasonable.” Id.
Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the state
court’s decision “was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” A determination of a factual issue made by a state court,
however, shall be presumed correct, and the habeas petitioner shall have the burden of rebutting
the presumption of correctness by clear and convincing evidence. See Parker, 244 F.3d at 835-36;
28 U.S.C. § 2254(e)(1).
B.
Standard For Ineffective Assistance Of Counsel
The Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 (1984),
established a two-part test for determining whether a convicted person is entitled to relief on the
ground that his counsel rendered ineffective assistance: (1) whether counsel’s performance was
deficient and “fell below an objective standard of reasonableness”; and (2) whether the deficient
performance prejudiced the defense. 2 Id. at 687-88. A court must adhere to a strong presumption
2
In Lockhart v. Fretwell, 506 U.S. 364, 372 (1993), the Supreme Court of the United States
clarified that the prejudice prong of the test does not focus solely on mere outcome determination;
rather, to establish prejudice, a criminal defendant must show that counsel’s deficient
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that counsel’s conduct falls within the wide range of reasonable professional assistance.
Id. at
689-90. “Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of
counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s
conduct.” Id. at 690; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).
As observed by the Eleventh Circuit Court of Appeals, the test for ineffective assistance of
counsel:
has nothing to do with what the best lawyers would have done. Nor is the test even
what most good lawyers would have done. We ask only whether some reasonable
lawyer at the trial could have acted, in the circumstances, as defense counsel acted
at trial. Courts also should at the start presume effectiveness and should always
avoid second guessing with the benefit of hindsight. Strickland encourages
reviewing courts to allow lawyers broad discretion to represent their clients by
pursuing their own strategy. We are not interested in grading lawyers’
performances; we are interested in whether the adversarial process at trial, in fact,
worked adequately.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Under those rules
and presumptions, “the cases in which habeas petitioners can properly prevail on the ground of
ineffective assistance of counsel are few and far between.” Rogers v. Zant, 13 F.3d 384, 386 (11th
Cir. 1994).
C.
Exhaustion and Procedural Default
One procedural requirement precludes federal courts, absent exceptional circumstances,
from granting habeas relief unless the petitioner has exhausted all means of available relief under
state law. 28 U.S.C. § 2254(b); O=Sullivan v. Boerckel, 526 U.S. 838, 842-43 (1999); Picard v.
Connor, 404 U.S. 270, 275 (1971). Specifically, 28 U.S.C. § 2254 provides in pertinent part:
An application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted unless it appears thatB
representation rendered the result of the trial fundamentally unfair or unreliable.
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(A)
the applicant has exhausted the remedies available in the courts of
the State; or
(B)
(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect
the rights of the applicant.
28 U.S.C. § 2254(b)(1). Thus, a federal court must dismiss those claims or portions of claims that
have been denied on adequate and independent procedural grounds under state law. Coleman v.
Thompson, 501 U.S. 722, 750 (1991), holding modified by Martinez v. Ryan, 566 U.S. 1 (2012).
In addition, a federal habeas court is precluded from considering claims that are not exhausted but
would clearly be barred if returned to state court. Id. at 735 n.1 (stating that if the petitioner failed
to exhaust state remedies and the court to which the petitioner would be required to present his
claims in order to meet the exhaustion requirement would now find the claims procedurally barred,
there is a procedural default for federal habeas purposes regardless of the decision of the last state
court to which the petitioner actually presented his claims).
In order to satisfy the exhaustion requirement, a state petitioner must “fairly presen[t]
federal claims to the state courts in order to give the State the opportunity to pass upon and correct
alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995)
(citing Picard, 404 U.S. at 275-76) (internal quotation marks omitted). The petitioner must apprise
the state court of the federal constitutional issue, not just the underlying facts of the claim or a
similar state law claim.
Snowden v. Singletary, 135 F.3d 732 (11th Cir. 1998). Furthermore, “[i]n
Florida, exhaustion usually requires not only the filing of a Rule 3.850 motion, but an appeal from
its denial.” Leonard v. Wainwright, 601 F.2d 807, 808 (5th Cir. 1979) (citing Lee v. Wainwright,
468 F.2d 809, 810 (5th Cir. 1972)).
Procedural default will be excused in two narrow circumstances. First, a petitioner may
obtain federal review of a procedurally defaulted claim if he can show both “cause” for the default
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and actual “prejudice” resulting from the default. “To establish ‘cause’ for procedural default, a
petitioner must demonstrate that some objective factor external to the defense impeded the effort
to raise the claim properly in the state court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir.
1999). “[E]xternal impediments include evidence that could not reasonably have been discovered
in time to comply with the rule; interference by state officials that made compliance impossible;
and ineffective assistance of counsel at a stage where the petitioner had a right to counsel.” Mize
v. Hall, 532 F.3d 1184, 1190 (11th Cir. 2008) (citing Judd v. Haley, 250 F.3d 1308, 1313 (11th
Cir. 2001)). To establish “prejudice” so as to warrant review of a procedurally defaulted claim, a
petitioner must show that there is at least a reasonable probability that the result of the proceeding
would have been different. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003) (citations
omitted).
The second exception, known as the “fundamental miscarriage of justice,” only occurs in
an extraordinary case, in which a “constitutional violation has probably resulted in the conviction
of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986). Actual innocence
means factual innocence, not legal insufficiency. Bousley v. United States, 523 U.S. 614, 623
(1998). 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. Schlup v. Delo, 513 U.S.
298, 327 (1995). In addition, “‘[t]o be credible,’ a claim of actual innocence must be based on
[new] reliable evidence not presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998)
(quoting Schlup, 513 U.S. at 324).
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III.
A.
Ground One
i.
ANALYSIS
Subpart A
Petitioner asserts counsel rendered ineffective assistance by failing to notify the trial court
that a juror was sleeping during the testimony of a witness. (Doc. 1 at 6). According to Petitioner,
he told counsel about the juror. (Id.). However, Petitioner does not know what portion of the trial
through which the juror slept, although he believes it was during the direct testimony of the victim,
who was his wife. (Id.).
Petitioner raised this ground in his first Rule 3.850 motion. The state court denied relief
pursuant to Strickland. (Doc. 15-14 at 73). The state court noted that Petitioner asserted that the
juror fell asleep for approximately five minutes, but the trial lasted for four days. (Id.). The state
court reasoned that the victim testified at length twice and Petitioner did not specify what testimony
the juror missed. (Id.). The state court concluded that prejudice did not result. (Id.).
Petitioner has not established that the state court’s denial of this ground is contrary to, or
an unreasonable application of, Strickland. Multiple witnesses were called during the four-day
trial. The victim testified at length during both the prosecution and defense’s case, and she was
thoroughly cross-examined by the defense. (Doc. 28-2 at 48-151, 272-317). In addition, the jury
saw the one and one-half hour video made by Petitioner, which he maintained was a rape/torture
pornographic movie that he and the victim agreed to make, that showed him committing the
offenses. Assuming that a juror fell asleep during five minutes of the victim’s testimony, a
reasonable probability does not exist that the outcome of the trial would have been different had
counsel notified the trial court about the juror. Accordingly, ground one is denied pursuant to §
2254(d).
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ii.
Subpart (b)
Petitioner contends counsel rendered ineffective assistance by failing to impeach his wife’s
mother, Vanera Rodgers. (Doc. 1 at 7). Specifically, Petitioner complains that counsel failed to
elicit that his wife’s mother did not like him because he came from a poor family and did not have
sufficient money. (Id). Petitioner notes that his wife’s mother testified in her deposition that she
and her husband offered to help their daughter leave Petitioner. (Id.).
Petitioner raised this ground in his first Rule 3.850 motion. The state court denied relief
pursuant to Strickland. (Doc. 15-14 at 73-74). The state court reasoned that most of Vanera
Rodgers’ testimony was corroborated by Deputy Robert Tabaczynski and she admitted on crossexamination that she did not like Petitioner. (Id. at 74). The state court concluded that prejudice
did not result because the jury heard that Vanera Rodgers was biased against Petitioner and her
testimony was largely corroborated by other witnesses. (Id.).
Petitioner has not established that the state court’s denial of this ground is contrary to, or
an unreasonable application of, Strickland. Vanera Rodgers admitted on cross-examination that
she did not like Petitioner. (Doc. 28-2 at 254). Furthermore, her testimony largely related to the
victim’s appearance and demeanor after the offenses and was corroborated by Deputy
Tabaczynski’s testimony. See Doc. 28-2 at 177-79, 241-45, 247. Consequently, prejudice did not
result from counsel’s failure to further question Vanera Rodgers about her bias against Petitioner.
Accordingly, ground two is denied pursuant to § 2254(d).
iii.
Subpart c
Petitioner maintains counsel rendered ineffective assistance by failing to impeach his
wife’s father, William Rodgers, to show he was biased against Petitioner. (Doc. 1 at 8). Petitioner
further contends that counsel failed to elicit from William Rodgers that Petitioner helped him cut
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a tree the morning of the offenses. (Id.). According to Petitioner, this testimony would have refuted
the victim’s testimony that Petitioner had time to take the video equipment and props by himself
to the scene of the offenses. (Id.).
Petitioner raised this ground in his first Rule 3.850 motion. The state court denied relief
pursuant to Strickland. (Doc. 15-14 at 74-75). The state court reasoned that most of William
Rodgers’ testimony was corroborated by Deputy Tabaczynski’s testimony and William Rodgers
admitted on cross-examination that he did not like Petitioner. (Id. at 74). The state court further
reasoned that Petitioner testified that he helped William Rodgers cut down a tree the morning of
the incident, Petitioner’s timeline coincided with the victim’s timeline, and Petitioner testified that
he and his wife got the props and equipment together the morning of the offenses, but he had found
the location to film the video at a nearby canal several days before the offenses. (Id. at 75). The
state court concluded that counsel had no reason to elicit evidence to contradict the victim’s
timeline because it did not conflict with Petitioner’s timeline. (Id.).
Petitioner has not established that the state court’s denial of this ground is contrary to, or
an unreasonable application of, Strickland. William Rodgers admitted on cross-examination that
he never liked Petitioner, and his testimony was substantially corroborated by Deputy
Tabaczynski’s testimony. (Doc. 28-2 at 162). Furthermore, the victim testified that Petitioner
helped her father cut down a tree before Petitioner went to the canal on the date of the offenses
and that she met him at 2:00 P.M. at the canal. (Id. at 110-11). Consistent with the victim’s
testimony, Petitioner testified that he helped William Rodgers cut down a tree around 9:15 A.M.
and was home by 11:30 A.M. on the morning of the incident. (Id. at 339-40). Petitioner also
testified that he left the house around 12:30, got to the canal around 1:15, and met his wife at the
canal around 2:30. (Id. at 345-46). Petitioner further testified that he found the location where he
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and the victim intended to make the video a few days before the offenses occurred. (Id. at 335-36).
The victim’s testimony regarding the events leading up to the offenses was largely consistent with
Petitioner’s testimony. Therefore, a reasonable probability does not exist that the outcome of the
trial would have been different had counsel questioned William Rodgers regarding whether
Petitioner helped him cut down a tree before the offenses occurred. Accordingly, this ground is
denied pursuant to § 2254(d).
iv.
Subpart d
Petitioner asserts counsel rendered ineffective assistance by failing to impeach the victim.
(Doc. 1 at 9-10). In support of this ground, Petitioner argues counsel should have elicited testimony
that the victim’s parents offered her money to leave him and she was afraid Petitioner would get
custody of the children. 3 (Id.). Petitioner maintains that this would have demonstrated that the
victim had a motive to fabricate the charges against him in order to obtain their property and
custody of the children. (Id.)
Petitioner raised this ground in his first Rule 3.850 motion. The state court denied relief
pursuant to Strickland. (Doc. 15-14 at 75-76). The state court noted that counsel attempted to
challenge the victim’s credibility by questioning her regarding her fear of losing custody of the
children if she divorced Petitioner. (Id. at 75). The state court further noted that after counsel
proffered questions concerning the couple’s history, past domestic violence, and threats to take the
children, the trial court warned counsel that further inquiry would open the door to uncharged
crimes and result in a mistrial. (Id.). The state court concluded that counsel made a reasonable
3
Petitioner further notes that counsel should have called Dennis and Sharon Pogar to
testify. (Doc. 1 at 10). This ground will be addressed infra in subpart q.
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decision not to ask further questions because the jury had essentially heard about the victim’s
concerns and asking further questions would risk a mistrial. (Id.).
Petitioner has not established that the state court’s denial of this ground is contrary to, or
an unreasonable application of, Strickland. The victim admitted that Petitioner had threatened to
take the children in the past. (Doc. 28-2 at 290, 296-97). Thereafter, counsel proffered additional
questions to the victim regarding divorce and custody of the children to demonstrate the victim’s
motive to fabricate her story. (Id. at 300-04). The trial court indicated counsel was allowed to
further question the victim on the issue but noted such questioning could open the door to other
matters which could result in a mistrial. (Id. at 304). Counsel then decided not to question the
victim further on the issue because the jury had already heard testimony about the matter. (Id.).
Counsel’s decision not to ask additional questions regarding these issues was reasonable given that
the victim admitted Petitioner had threatened to take the children in the past and that further
questioning could have resulted in a mistrial. Counsel, therefore, was not deficient. In addition, a
reasonable probability does not exist that the outcome of the trial would have been different had
counsel further questioned the victim in light of the evidence against Petitioner, which included a
video of the offenses. Accordingly, this ground is denied pursuant to § 2254(d).
v.
Subpart e
Petitioner maintains counsel rendered ineffective assistance by failing to know the proper
procedure to impeach a witness with her prior statement. (Doc. 1 at 10). Petitioner raised this
ground in his first Rule 3.850 motion. The state court denied relief pursuant to Strickland. (Doc.
15-14 at 76). The state court concluded that Petitioner failed to demonstrate prejudice resulted
from counsel’s performance. (Id.).
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Petitioner has not established that the state court’s denial of this ground is contrary to, or
an unreasonable application of, Strickland. Although counsel did not understand the proper
procedure to impeach a witness with a prior inconsistent statement, Petitioner has not established
that a reasonable probability exists that the outcome of the trial would have been different had
counsel known the proper procedure. As discussed more fully infra in ground one, subpart f,
Petitioner has not demonstrated a reasonable probability exists that further impeachment of the
witnesses would have resulted in a different outcome. Accordingly, this ground is denied pursuant
to § 2254(d).
vi.
Subpart f
Petitioner asserts counsel rendered ineffective assistance by failing to impeach his wife
with her prior inconsistent statements. (Doc. 1 at 11). Specifically, Petitioner contends inter alia
that counsel should have impeached the victim with her prior statements concerning (1) when she
made arrangements with her mother to watch the children, (2) whether she drank a beer prior to
the offenses and how long it took them to walk to the site of the offenses, (3) whether she brought
anything from her vehicle to the canoe, (4) whether Petitioner said they should leave the stuff at
the site of the offenses, and (5) whether Petitioner tortured her in order to get her to lie to her
parents regarding why they were late. (Id. at 11-14). Petitioner also complains inter alia that
counsel should have used the video to impeach his wife’s testimony that (1) her toes barely touched
the ground during the offenses, (2) she was able to get the knife that was inserted into her vagina
to fall out while tied to the tree, (3) four golf balls versus two golf balls were inserted into her
vagina, (4) it was Petitioner’s idea to say they were scouting the location as a possible camping
destination to take the children if anyone asked why they were there, and (5) she did not say on
the video that they have to successfully make the movie and they should celebrate at home. (Id. at
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11-16). Additionally, Petitioner contends counsel should have (1) impeached the victim regarding
her drama experience, (2) shown that the victim’s handwriting was on the tape, and (3) impeached
the victim’s statements using letters to Petitioner regarding their property and the foreclosure of
their home. (Id. at 15-16).
Petitioner raised most of this ground in his first Rule 3.850 motion. The state court denied
relief pursuant to Strickland. (Doc. 15-14 at 76-77). The state court recognized that there were
some discrepancies in the victim’s trial testimony, her deposition, and the video. (Id. at 76).
Nevertheless, the state court reasoned that the victim’s testimony was overall consistent and that
Petitioner had not demonstrated that the minor inconsistencies would have undermined her
credibility. (Id.). The state court further reasoned that the jury was able to consider her trial
testimony in light of the videotape. (Id. at 76-77). The state court noted Petitioner failed to allege
that he told his attorney prior to trial that the victim had theatrical experience from high school.
(Id. at 77). The state court concluded Petitioner failed to demonstrate that the outcome of the
proceeding would have been different but for counsel’s performance. (Id. at 76).
Petitioner did not argue in the state court that counsel rendered ineffective assistance by
failing to show that the victim’s handwriting was on the video or by failing to impeach her with
letters she wrote to Petitioner. Petitioner has not demonstrated an exception to the procedural
default bar to overcome his failure to exhaust this portion of subpart f. Therefore, this portion of
subpart f is procedurally barred from review. Alternatively, it is without merit. Petitioner has not
established that the victim’s handwriting was in fact on the video. Even if it was, however, this
would not have impeached her credibility given that the camera was the family video camera.
Finally, Petitioner has not demonstrated that (1) the victim wrote letters to him regarding their
property and the foreclosure of their house or that any purported statements in the letters were
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untruthful, (2) such evidence was admissible, and (3) that prejudice resulted from counsel’s failure
to introduce this evidence.
Petitioner has not established that the state court’s denial of this ground is contrary to, or
an unreasonable application of, Strickland. Although Petitioner notes some discrepancies in the
victim’s trial testimony and prior statements, these discrepancies are minor and many relate to
largely collateral issues. With respect to counsel’s failure to impeach the victim with the video,
the jury watched the video during the trial. Therefore, the jury had the opportunity to discern any
of the purported inconsistencies between the victim’s testimony and her statements in the video.
Moreover, the victim admitted that she took a drama class in college. (Doc. 28-2 at 315). To the
extent the victim may have been in the drama club or the Thespian Society in high school, this
does not necessarily equate to having television production experience as asserted by Petitioner.
See Doc. 1 at 15. Assuming, however, that the victim did have such experience, the victim’s
credibility would not have been sufficiently undermined to result in a reasonable probability that
the outcome of the trial would have been different had counsel presented such evidence.
In sum, the jury had the opportunity to consider the video of the incident and determine the
credibility of the victim’s testimony in light of the video. For instance, consistent with the victim’s
testimony that Petitioner lured her to the site by telling her he needed help getting a boat motor,
the prosecutor noted that the victim referenced the boat motor in the video. (Doc. 28-3 at 117-18).
Additionally, despite the fact that Petitioner contended they planned to make and sell the
rape/torture video, the victim referred to breast feeding their child and actually used the child’s
name in the video. (Id. at 129-30). Furthermore, the video corroborated the victim’s testimony that
she was breastfeeding when the video was recorded in contradiction to Petitioner’s trial testimony.
(Id. at 130). Consequently, Petitioner has not established that prejudice resulted from counsel’s
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failure to impeach the victim regarding the issues referenced supra. Accordingly, this ground is
denied.
vii.
Subpart g
Petitioner asserts counsel rendered ineffective assistance by failing to object when the State
elicited false testimony from the victim. (Doc. 1 at 17). Specifically, Petitioner complains the
victim lied when she testified her toes were barely touching the ground, she was able to get the
knife to fall out of her vagina, and Petitioner put at least four golf balls in her vagina. (Id.).
Petitioner raised this ground in his first Rule 3.850 motion. The state court denied relief
pursuant to Strickland. (Doc. 15-14 at 77). The state court reasoned that the jury was able to decide
if the victim’s testimony regarding the offenses coincided with the events depicted on the video.
(Id.).
Petitioner has not established that the state court’s denial of this ground is contrary to, or
an unreasonable application of, Strickland. As discussed supra, the jury watched the video and
was able to assess the credibility of the victim in light of it. To the extent the victim’s testimony
was contradicted by the video, the jury would have known this after watching the video. Petitioner,
therefore, has not demonstrated either deficient performance or prejudice. Accordingly, this
ground is denied pursuant to § 2254(d).
viii.
Subpart h
Petitioner maintains counsel rendered ineffective assistance by failing to object to
inadmissible hearsay. (Doc. 1 at 17). In support of this ground, Petitioner complains that the victim
testified about various statements made by Petitioner. (Id. at 17-18). Petitioner also contends
counsel should have moved for a mistrial when the victim testified about an uncharged crime. (Id.
at 18).
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Petitioner raised part of this ground in his first Rule 3.850 motion. The state court denied
relief pursuant to Strickland. (Doc. 15-14 at 77-78). The state court concluded that Petitioner’s
statements were admissible as a party opponent under section 90.803(18) of the Florida Statutes.
(Id.).
Petitioner did not argue in the state court that counsel rendered ineffective assistance by
failing to move for a mistrial based on the victim’s testimony regarding an uncharged crime.
Petitioner has not demonstrated an exception to the procedural default bar to overcome his failure
to exhaust this portion of subpart h. Therefore, this portion of ground one, subpart h is procedurally
barred from review. Alternatively, it is without merit. Petitioner has not established that prejudice
resulted. The victim testified that Petitioner twisted and grabbed her breasts in the car on the way
to her parents’ home. (Doc. 28-2 at 86). The victim’s single statement did not warrant a mistrial.
Petitioner also has not established that the state court’s denial of this ground is contrary to,
or an unreasonable application of, Strickland. Pursuant to section 90.803(18) of the Florida
Statutes, statements made by a party are admissible against the party. Fla. Stat. § 90.803(18)(a)
(2007). Therefore, counsel had no basis to object to the victim’s testimony, and prejudice did not
result from counsel’s failure to do so. Accordingly, this ground is denied.
ix.
Subpart i
Petitioner asserts counsel rendered ineffective assistance by failing to object to the
prosecution’s closing argument. (Doc. 1 at 18). According to Petitioner, the prosecutor made
several improper statements that were not supported by the evidence, were hearsay, and expressed
her personal opinion. (Doc. 1 at 18-20).
Petitioner raised this ground in his first Rule 3.850 motion. The state court denied relief
pursuant to Strickland. (Doc. 15-14 at 78). The state court reasoned that the statements referenced
Page 17 of 41
by the prosecutor were not hearsay, did not mischaracterize the evidence, and were permissible
comments based on the evidence presented. (Id.).
The state court’s denial of this ground is not contrary to, or an unreasonable application of,
Strickland. The prosecutor’s statements during closing argument were reasonable inferences that
could be drawn from the evidence. “[A]n attorney is allowed to argue reasonable inferences from
the evidence and to argue credibility of witnesses or any other relevant issue so long as the
argument is based on the evidence.” Miller v. State, 926 So. 2d 1243, 1254-55 (Fla. 2006) (citing
Craig v. State, 510 So. 2d 857, 865 (Fla. 1987)). Counsel, therefore, was not deficient for failing
to object to the prosecutor’s statements.
Moreover, the trial judge instructed the jury that nothing the attorneys said was evidence
and that only the evidence presented at trial could be considered in determining Petitioner’s guilt.
(Doc. 28-3 at 68, 152). Consequently, a reasonable probability does not exist that the outcome of
the trial would have been different had counsel objected to the prosecutor’s statements.
Accordingly, this ground is denied pursuant to § 2254(d).
x.
Subpart j
Petitioner contends counsel rendered ineffective assistance by failing to request a hearing
based on the State’s failure to disclose exculpatory evidence and the victim’s destruction of
evidence. (Doc. 1 at 20). Petitioner complains that their home computer showed they had
researched pornographic rape/torture movies and the victim removed “the evidence it contained”
before police obtained it. (Id. at 20-21).
Petitioner raised this ground in his first Rule 3.850 motion. The state court determined that
Petitioner failed to allege that the evidence from the computer would have been exculpatory or
show that the State had custody of the computer or was responsible for its destruction. (Doc. 15-
Page 18 of 41
14 at 79-80). The state court, therefore, concluded counsel was not ineffective for failing to seek
dismissal of the charges on this basis. (Id. at 80).
The state court’s denial of this ground is not contrary to, or an unreasonable application of,
Strickland. “[U]nless a criminal defendant can show bad faith on the part of the police, failure to
preserve potentially useful evidence does not constitute a denial of due process of law.” Arizona
v. Youngblood, 488 U.S. 51, 58 (1988). Petitioner has not shown that the police acted in bad faith
in failing to keep the purported computer. Moreover, assuming the State had the computer, the
victim deleted pornographic material before it was seized, and such could be proven, Petitioner
has not demonstrated a reasonable probability exists that the outcome of the trial would have been
different had counsel sought a hearing on the issue. The existence of pornography on the computer
was not exculpatory nor would it have established that the victim consented to the offenses, even
if it could be proven she downloaded the pornography. Therefore, prejudice did not result from
counsel’s failure to request a hearing on the issue. Accordingly, this ground is denied pursuant to
§ 2254(d).
xi.
Subpart k
Petitioner asserts counsel rendered ineffective assistance by failing to request a hearing to
establish that the State failed to preserve pornographic videotapes of him and the victim. (Doc. 1
at 21). Petitioner notes that the victim destroyed the videotapes and the State should have known
about them because he mentioned them in his jail phone calls, which were recorded and part of
discovery. (Id. at 21-22).
Petitioner raised this ground in his first Rule 3.850 motion. The state court determined that
Petitioner failed to allege that the State or its agents had custody of the tapes or destroyed them.
(Doc. 15-14 at 79). The state court, therefore, concluded counsel was not ineffective for failing to
Page 19 of 41
seek dismissal of the charges on this basis. (Id.).
The state court’s denial of this ground is not contrary to, or an unreasonable application of,
Strickland. There is no evidence that the police ever had the purported pornographic videotapes or
knew about them. Petitioner has not shown that the police acted in bad faith in failing to preserve
them. Additionally, during her deposition, the victim testified that prior to the offenses, she found
and destroyed two videos that Petitioner secretly recorded of them having sex in their bedroom.
(Doc. 8-2 at 43-48). There is no evidence that any other videos existed after the commission of the
offenses. Consequently, counsel was not deficient for failing to request a hearing on the issue of
the State’s failure to preserve other pornographic videos nor did prejudice result from counsel’s
failure to do so. Accordingly, this ground is denied pursuant to § 2254(d).
xii.
Subpart l
Petitioner asserts counsel rendered ineffective assistance by failing to request a hearing
based on the police’s failure to collect evidence. (Doc. 1 at 23). Specifically, Petitioner complains
the police failed to collect eleven beer cans, a candle, and a pair of stockings tied to a cord. (Id.).
Petitioner raised this ground in his first Rule 3.850 motion. The state court denied relief.
(Doc. 15-14 at 80). The state court concluded Petitioner failed to show bad faith on the part of the
State and counsel, therefore, had no basis to seek dismissal of the charges. (Id.).
The state court’s denial of this ground is not contrary to, or an unreasonable application of,
Strickland. As noted previously, “unless a criminal defendant can show bad faith on the part of the
police, failure to preserve potentially useful evidence does not constitute a denial of due process
of law.” Youngblood, 488 U.S. at 58. Petitioner has not shown that the police acted in bad faith by
failing to collect the aforementioned items. Furthermore, Petitioner has not established that a
reasonable probability exists that the outcome of the trial would have been different had counsel
Page 20 of 41
sought a hearing on the issue. None of these items would have exculpated Petitioner. Counsel,
therefore, was not deficient for failing to request a hearing on the issue nor did prejudice result
from counsel’s failure to do so. Accordingly, this ground is denied pursuant to § 2254(d).
xiii.
Subpart m
Petitioner maintains counsel rendered ineffective assistance by failing to properly question
the victim regarding Count Five and to seek a judgment of acquittal of this count. (Doc. 1 at 24).
Petitioner argues that the information charged him with committing the offense while the victim
was bound. (Id.). However, according to Petitioner, the victim testified at her deposition that it
may have occurred after she was untied. (Id.). Petitioner further complains that there was no
evidence that the bottle inserted into the victim’s vagina contained Tabasco Sauce. (Id. at 24).
Petitioner raised this ground in his first Rule 3.850 motion. The state court denied relief.
(Doc. 15-14 at 80-82). The state court concluded that it was not necessary for the State to show
the contents of the bottle, that sufficient evidence was presented for the jury to convict Petitioner
of the offense, and counsel was not ineffective for failing to move for a judgment of acquittal.
(Id.).
Petitioner has not established deficient performance or prejudice. The information charged
Petitioner in Count Five with sexual battery by “placing a bottle of Tabasco Sauce” into the
victim’s vagina. (Doc. 15-1 at 12). However, before the close of the State’s case, the trial court
allowed the State to amend the information to reflect a Tabasco Sauce bottle was inserted into the
victim’s vagina, and the jury was instructed accordingly. (Doc. 28-3 at 47, 140). Therefore, the
contents of the bottle were irrelevant. Nevertheless, the victim testified that she went to the hospital
because she had an intense burning sensation in her vaginal area, and a bottle of Tabasco Sauce
was removed from her vagina at the hospital. (Doc. 28-2 at 94-95). Assuming, therefore, that the
Page 21 of 41
content of the bottle was relevant to the charge, a determination not made by the Court, evidence
was presented from which the jury could have concluded the bottle contained Tabasco Sauce.
Furthermore, at trial, the victim testified she did not know that Petitioner had inserted the
bottle into her vagina until she went to the hospital. (Doc. 28-2 at 95). Similarly, during her
deposition, the victim testified she did not know when Petitioner placed the bottle into her vagina;
however, she said it was possible Petitioner did it after they returned to the boat because he
complained that it burned when he assaulted her again. (Doc. 8-2 at 50-51). The victim explicitly
said she did not know when Petitioner put the bottle in her vagina. (Id. at 51). Therefore, counsel
was not deficient for failing to ask the victim questions regarding when the bottle was placed in
her vagina or for failing to move for a judgment of acquittal of Count Five. Additionally, a
reasonable probability does not exist that the outcome of the trial would have been different had
counsel done so. Accordingly, this ground is denied pursuant to Strickland.
xiv.
Subpart n
Petitioner asserts counsel rendered ineffective assistance by failing to move to dismiss
Count Five and to disqualify the trial judge. (Doc. 1 at 25). In support of this ground, Petitioner
argues that the trial judge instructed the State to amend to charge to reflect a “Tabasco Sauce
bottle” versus a “bottle of Tabasco Sauce”. (Id. at 26). Petitioner further argues that the amendment
of the information prejudiced his defense because there was no proof there was Tabasco Sauce in
the bottle. (Id. at 25-26).
Petitioner raised this ground in his first Rule 3.850 motion. The state court denied relief.
(Doc. 15-14 at 82-83). The state court reasoned that “[r]egardless of how the charge was worded,
the jury could conclude either that the bottle contained Tabasco and injured the victim, or that,
even if it did not contain sauce, the insertion of the bottle was done while [Petitioner] was using
Page 22 of 41
great physical force to inflict bodily harm on the victim.” (Id.). The state court concluded that the
amendment of the information did not prejudice Petitioner. (Id.).
Petitioner has not established deficient performance or prejudice. Pursuant to Florida law,
“the state may substantively amend an information during trial, even over the objection of the
defendant, unless there is a showing of prejudice to the substantial rights of the defendant.” State
v. Anderson, 537 So. 2d 1373, 1375 (Fla. 1989). Petitioner has not demonstrated that the
amendment of the information from a “bottle of Tabasco Sauce” to a “Tabasco Sauce bottle”
resulted in prejudice. Petitioner was on notice that the information charged him with sexual battery
by placing a bottle into the victim’s vagina, regardless of the descriptor of the bottle. Moreover, as
discussed supra, the contents of the bottle were irrelevant because it was the placement of the
bottle itself into the victim’s vagina that was an element of the offense. Nevertheless, evidence
was presented from which the jury could have concluded the bottle contained Tabasco Sauce.
Likewise, no basis existed to recuse the trial judge. Under Florida law,
“A [recusal] motion is legally sufficient if it shows that the party making the motion
has a well-grounded fear that he or she will not receive a fair trial from the presiding
judge.” Barwick v. State, 660 So.2d 685, 691 (Fla.1995), cert. denied, 516 U.S.
1097, 116 S. Ct. 823, 133 L.Ed.2d 766 (1996); § 38.10, Fla. Stat. (1995); Fla. R.
Jud. Admin. 2.160. The motion “must be well-founded and contain facts germane
to the judge’s undue bias, prejudice, or sympathy.” Jackson v. State, 599 So.2d 103,
107 (Fla.), cert. denied, 506 U.S. 1004, 113 S. Ct. 612, 121 L.Ed.2d 546 (1992).
Williams v. State, 689 So. 2d 393, 395 (Fla. 3d DCA 1997). The trial judge simply asked the parties
if the term “Tabasco Sauce bottle” was more accurate, told the State it did not have to change the
wording of the information, and asked the State what it wished to do. (Doc. 28-3 at 46-47). Nothing
in this interaction demonstrated any undue bias, prejudice, or sympathy by the judge for either
party. Counsel, therefore, had no basis on which to move to recuse the judge, and no prejudice
resulted from counsel’s failure to do so. Accordingly, this ground is denied.
Page 23 of 41
xv.
Subpart o
Petitioner contends counsel rendered ineffective assistance by failing to renew the motion
for judgment of acquittal after the jury returned the verdict. (Doc. 1 at 27). Petitioner maintains
counsel should have argued that the State failed to disprove every reasonable hypothesis of the
defense and the evidence was insufficient to warrant convictions. (Id.).
Petitioner raised this ground in his first Rule 3.850 motion. The state court denied relief.
(Doc. 15-14 at 83-84). The state court concluded there was evidence to support each charge, the
trial court had denied the defense’s motion for judgment of acquittal at the close of the State’s case
and the defense’s case, and no reason existed to believe the motion would have been granted on a
third request. (Id.).
The state court’s denial of this ground is neither contrary to, nor an unreasonable
application of, Strickland. Ample evidence was presented to support the jury’s verdict. Counsel
moved for a judgment of acquittal twice, and the motions were denied. (Doc. 28-2 at 261-65; Doc.
28-3 at 42). Counsel, therefore, had no reason to request a judgment of acquittal after the jury
returned the verdict, and prejudice did not result from counsel’s failure to do so. Accordingly, this
ground is denied pursuant to § 2254(d).
xvi.
Subpart p
Petitioner asserts counsel rendered ineffective assistance by failing to object to the
admission of the videotape. (Doc. 1 at 27-28). According to Petitioner, the videotape was not
properly authenticated by the victim before it was admitted into evidence. (Id.). Petitioner
complains that as a result, counsel was unable to question the victim about the contradictions in
her testimony and the videotape. (Id.).
Petitioner raised this ground in his first Rule 3.850 motion. The state court denied relief
Page 24 of 41
pursuant to Strickland. (Doc. 15-14 at 84). The state court reasoned that the videotape was properly
authenticated, and counsel’s failure to object to the admission of the tape did not result in prejudice.
(Id.).
The state court’s denial of this ground is not contrary to, or an unreasonable application of,
Strickland. The videotape was properly authenticated. First, the victim identified the videotape as
the one taken from the camera on the date of the incident that she gave to police, and Agent Buggs
testified that the victim gave him the videotape the night of the incident and he had retained custody
of it. (Doc. 28-2 at 90, 184-85). The videotape was then admitted into evidence. (Id.). Furthermore,
counsel had an opportunity to question the victim about the videotape when the defense called her
as a witness. (Id. at 272-300). Therefore, counsel had no basis on which to object to the admission
of the videotape, and prejudice did not result from counsel’s failure to do so. Accordingly, this
ground is denied pursuant to § 2254(d).
xvii.
Subpart q
Petitioner maintains counsel rendered ineffective assistance by failing to call Dennis and
Sharon Pogar to testify. (Doc. 1-1 at 1-2). Petitioner asserts that these witnesses would have
testified that Petitioner had a reputation for being a loving father and the victim had a reputation
for being a bad mother and a liar. (Id.). Petitioner also contends that they could have testified they
saw the victim shortly after the offenses at Petitioner and the victim’s home and regarding where
the victim parked her car at the canal. (Id. at 2).
Petitioner raised this ground in his first Rule 3.850 motion. The state court denied relief.
(Doc. 15-14 at 85). The state court reasoned that general good character evidence was not relevant
to whether Petitioner sexually battered his wife in private. (Id.). The state court further reasoned
that the victim’s reputation as a mother was not admissible because it did not relate to her
Page 25 of 41
reputation for honesty and whether the victim went to her house after the offenses was irrelevant.
(Id.). With respect to where the victim parked her car, the state court noted that Kenny Mullins
(“Mullins”) testified regarding the location and distance of the canal and surrounding area. (Id.).
The state court concluded, therefore, that prejudice did not result from counsel’s failure to call
these witnesses. (Id.).
The state court’s denial of this ground is not contrary to, or an unreasonable application of,
Strickland. First, evidence that Petitioner was a good father or the victim was a bad mother was
not relevant as neither was on trial for their parenting abilities. As to the distance from where the
victim parked at the canal versus where the canoe was placed in the canal, Petitioner, the victim,
and Mullins testified about these matters. Finally, to the extent the Pogars could have testified
about the victim’s reputation for dishonesty or that the victim went home after the offenses,
Petitioner has not established a reasonable probability exists that the outcome of the trial would
have been different had they done so. The victim’s testimony was largely corroborated by the
videotape of the offenses. The jury was able to view the video and assess the victim’s credibility
in light of it. Consequently, prejudice did not result from counsel’s failure to call these witnesses.
Accordingly, this ground is denied pursuant to § 2254(d).
xviii. Subpart r
Petitioner asserts counsel rendered ineffective assistance by failing to move for a new trial.
(Doc. 1-1 at 2). According to Petitioner, counsel should have sought a new trial based on the
sleeping juror, prosecutorial misconduct, and insufficiency of the evidence. (Id.).
Petitioner raised this ground in his first Rule 3.850 motion. The state court denied relief.
(Doc. 15-14 at 86). The state court determined that none of the bases set forth for a new trial
warranted relief. (Id.).
Page 26 of 41
The state court’s denial of this ground is not contrary to, or an unreasonable application, of
Strickland. As discussed in subparts a through r, counsel was not ineffective in relation to these
grounds. Likewise, a reasonable probability does not exist that the outcome of the trial would have
been different had counsel moved for a new trial on the substantive bases set forth in these grounds.
Accordingly, this ground is denied pursuant to § 2254(d).
xix.
Subpart s
Petitioner contends that the cumulative effect of counsel’s errors deprived him of his right
to a fair trial. (Doc. 1-1 at 3). Petitioner raised this ground in his first Rule 3.850 motion. The state
court denied relief because Petitioner’s grounds of ineffective assistance of counsel were not
meritorious. (Doc. 15-14 at 86).
“The Supreme Court has not directly addressed the applicability of the cumulative error
doctrine in the context of an ineffective assistance of counsel claim.” Forrest v. Florida Dep’t of
Corr., 342 F. App’x 560, 564 (11th Cir. 2009). The Supreme Court has held, however, in relation
to a claim of ineffective assistance of counsel, that “‘there is generally no basis for finding a Sixth
Amendment violation unless the accused can show how specific errors of counsel undermined the
reliability of the finding of guilt.’” Id. (quoting United States v. Cronic, 466 U.S. 648, 659 n. 26
(1984)).
Petitioner has not established counsel rendered ineffective assistance in any of his grounds.
As explained by the Eleventh Circuit Court of Appeals, “[w]hile the prejudice inquiry should be a
cumulative one as to the effect of all of the failures of counsel that meet the performance deficiency
requirement, only the effect of counsel’s actions or inactions that do meet that deficiency
requirement are considered in determining prejudice.” Evans v. Sec’y, Fla. Dep’t of Corr., 699
F.3d 1249, 1269 (11th Cir. 2012). Consequently, because Petitioner has not demonstrated any
Page 27 of 41
deficient performance or prejudice, his claim of cumulative error fails. See also Borden v. Allen,
646 F.3d 785, 823 (11th Cir. 2011) (“Because Borden has not sufficiently pled facts that would
establish prejudice—cumulative or otherwise—we decline to elaborate further on [a cumulativeeffect ineffective assistance of counsel claim] for fear of issuing an advisory opinion on a
hypothetical issue.”). Accordingly, this ground is denied pursuant to § 2254(d).
B.
Ground Two
i.
Subpart a
Petitioner asserts appellate counsel rendered ineffective assistance by failing to argue
Petitioner was not present at his arraignment. (Doc. 1-1 at 4-5). According to Petitioner, someone
other than himself was arraigned at his arraignment and entered a plea of not guilty. (Id. at 5).
Petitioner raised this ground in a state habeas petition. The Fifth DCA summarily denied
relief. (Doc. 15-10 at 39).
Criminal defendants have the right to effective counsel on appeal. Alvord v. Wainwright,
725 F.2d 1282, 1291 (11th Cir. 1984). “Claims of ineffective assistance of appellate counsel are
governed by the same standards applied to trial counsel under Strickland.” Philmore v. McNeil,
575 F.3d 1251, 1264 (11th Cir. 2009) (citing Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir.
1991)). In considering appellate counsel’s performance, “the Sixth Amendment does not require
appellate advocates to raise every non-frivolous issue.” Id. (quoting Heath, 941 F.2d at 1130-31).
Petitioner has not established that the state court’s denial of this ground is contrary to, or
an unreasonable application of, clearly established federal law. Pursuant to Florida law, “[n]either
a failure to arraign nor an irregularity in the arraignment shall affect the validity of any proceeding
in the cause if the defendant pleads to the indictment or information on which the defendant is to
be tried or proceeds to trial without objection to such failure or irregularity.” Fla. R. Crim. P.
Page 28 of 41
3.160(b). Petitioner did not object to his purported absence from his arraignment. Consequently,
appellate counsel had no reason to raise this meritless issue, and prejudice did not result from
counsel’s failure to do so. Accordingly, this ground is denied pursuant to § 2254(d).
ii.
Subpart b
Petitioner maintains appellate counsel rendered ineffective assistance by failing to argue
that the State failed to collect, preserve, and disclose exculpatory evidence. (Doc. 1-1 at 5). In
support of this ground, Petitioner relies on the evidence noted in ground one, subpart j supra,
namely a computer. (Id.).
Petitioner raised this ground in a state habeas petition. The Fifth DCA summarily denied
relief. (Doc. 15-10 at 39).
Petitioner has not established that the state court’s denial of this ground is contrary to, or
an unreasonable application of, clearly established federal law. As discussed supra, there is no
indication that the police had the computer, destroyed any evidence, or acted in bad faith in failing
to keep the purported computer. Furthermore, this issue was not preserved for appeal in the trial
court, and Petitioner has not demonstrated it rises to the level of fundamental error. Therefore,
appellate counsel was not deficient for failing to raise this issue nor did prejudice result from
counsel’s failure to do so. See Rodriguez v. State, 919 So. 2d 1252 (Fla. 2005) (holding that
appellate counsel is not ineffective for failing to raise an issue not preserved in the trial court,
unless the issue rises to the level of fundamental error). Accordingly, this ground is denied pursuant
to § 2254(d).
iii.
Subpart c
Petitioner contends appellate counsel rendered ineffective assistance by failing to argue
that the trial judge improperly directed the State to amend Count Five in order to prove the
Page 29 of 41
elements of the offense. (Doc. 1-1 at 5-6). In support of this ground, Petitioner relies on the
arguments raised in ground one, subpart n supra. (Id.).
Petitioner raised this ground in a state habeas petition. The Fifth DCA summarily denied
relief. (Doc. 15-10 at 39).
Petitioner has not established that the state court’s denial of this ground is contrary to, or
an unreasonable application of, clearly established federal law. As discussed supra, the trial judge
asked the parties if the term “Tabasco Sauce bottle” was more accurate, told the State it did not
have to change the wording in the information, and asked the State what it wished to do. Contrary
to Petitioner’s contention, the trial judge did not direct the State to amend Count Five. Moreover,
the contents of the bottle were irrelevant because it was the placement of the bottle into the victim’s
vagina that was an element of the offense. Consequently, no prejudice resulted from the
amendment of this count. Finally, this issue was not preserved for appeal in the trial court, and
Petitioner has not demonstrated it rises to the level of fundamental error. Therefore, appellate
counsel was not deficient for failing to raise this issue nor did prejudice result from counsel’s
failure to do so. Accordingly, this ground is denied pursuant to § 2254(d).
iv.
Subpart d
Petitioner asserts appellate counsel rendered ineffective assistance by failing to argue that
the prosecutor made improper statements in closing argument. (Doc. 1-1 at 6). Petitioner relies on
the prosecutor’s statements noted in ground one, subpart i. (Id).
Petitioner raised this ground in a state habeas petition. The Fifth DCA summarily denied
relief. (Doc. 15-10 at 39).
Petitioner has not established that the state court’s denial of this ground is contrary to, or
an unreasonable application of, clearly established federal law. The prosecutor’s statements during
Page 30 of 41
closing argument were reasonable inferences that could be drawn from the evidence. In addition,
the trial judge instructed the jury that nothing the attorneys said was evidence and that only the
evidence presented at trial could be considered in determining Petitioner’s guilt. Finally, this issue
was not preserved for appeal in the trial court, and Petitioner has not demonstrated it rises to the
level of fundamental error. Therefore, appellate counsel was not deficient for failing to raise this
issue, and prejudice did not result from counsel’s failure to do so. Accordingly, this ground is
denied pursuant to § 2254(d).
v.
Subpart e
Petitioner asserts appellate counsel rendered ineffective assistance by failing to argue that
the videotape was obtained via an illegal search and seizure. (Doc. 1-1 at 6-7). Petitioner did not
raise this ground in the state court. Therefore, this ground is unexhausted and barred from review
absent an exception.
Petitioner has not established cause or prejudice to overcome his procedural default. He
also has not established actual innocence. Consequently, Petitioner has not demonstrated an
exception to the procedural default bar. Accordingly, this ground is procedurally barred from
review.
C.
Ground Three
Petitioner contends that his constitutional rights were violated by the illegal search and
seizure of the videotape of the offenses. (Doc. 1-1 at 8-11). According to Petitioner, the victim and
her father were acting as agents of the State when they retrieved the videotape from the car and
gave it to police. (Id.).
Petitioner raised this ground in his second Rule 3.850 motion and in his motions for return
of property. See Doc. Nos. 15-15 at 79-80; 15-16 at 1-7; 15-19 at 87; 15-20 at 1-36; 15-26 at 15-
Page 31 of 41
23. The state court denied the claim in the Rule 3.850 motion as procedurally barred and dismissed
both motions for return of property as an abuse of process. (Doc. Nos. 15-16 at 10-11; 15-20 at
47-51; 15-28 at 6-7). The Fifth DCA dismissed Petitioner’s appeal of the Rule 3.850 order based
on his voluntary dismissal and affirmed per curiam the dismissal of his motions for return of
property. (Doc. Nos. 15-15 at 77; 15-16 at 56; 15-20 at 76). The state court denied this claim and
dismissed the motions for return of property based on adequate and independent procedural
grounds under state law. See, e.g., Isley v. State, 652 So. 2d 409, 411 (Fla. 5th DCA 1995)
(affirming dismissal of collateral motions because they were an abuse of process); Moore v. State,
820 So.2d 199, 205 (Fla. 2002) (holding that a second or successive motion for post-conviction
relief can be denied on the ground that it is an abuse of process if there is no reason for failing to
raise the issues in the previous motion); Boldender v. Dugger, 564 So. 2d 1057, 1058 n. 1
(Fla.1990) (holding that issues which were raised on appeal or in the first post-conviction motion,
or which could and should have been raised previously, were procedurally barred). As a result,
this ground is procedurally barred from review by this Court absent an exception to the procedural
default bar.
Petitioner has not demonstrated cause or prejudice to excuse the procedural default.
Likewise, he has not shown the applicability of the actual innocence exception. A review of the
record reveals that Petitioner is unable to satisfy either of the exceptions to the procedural default
bar. Therefore, this ground is procedurally barred from review. 4
4
Alternatively, this ground is denied on the merits. The victim testified at trial that after
the police arrived, she instructed her father to get the video camera containing the tape from her
vehicle. (Doc. 28-2 at 88-89). The victim’s father similarly testified that he got the video camera
from the victim’s car. (Id. at 160). An officer testified that the victim gave the police the videotape.
(Id. at 184-85). The evidence establishes the victim had possession and ownership of the car and
video camera. There is no evidence that the police directed the victim or her father to retrieve the
videotape from the car. Consequently, the search and seizure of the car and videotape were not
Page 32 of 41
D.
Ground Four
Petitioner asserts that his constitutional rights were violated because a trial court staff
attorney, who had a conflict of interest, continued to work on his post-conviction motions after a
judge recused himself. (Doc. 1-1 at 12-17). According to Petitioner, the staff attorney may have
known the victim or her mother although the staff attorney denies it. (Id. at 13).
Petitioner raised this ground in his fourth Rule 3.850 motion. The state court denied relief.
(Doc. 15-19 at 52-54). The state court determined that Petitioner failed to show that the staff
attorney was biased against him or had a conflict of interest when she worked on the case. (Id.).
Initially, the Court notes that the Eleventh Circuit Court of Appeals “has repeatedly held
defects in state collateral proceedings do not provide a basis for habeas relief.” Carroll v. Sec’,
Dep’t of Corr., 574 F.3d 1354, 1365 (11th Cir. 2009). Therefore, Petitioner’s contention that his
state post-conviction proceeding was inadequate because a staff attorney with a conflict worked
on his motions is not a cognizable habeas claim. See, e.g., Spradley v. Dugger, 825 F.2d 1566,
1567 (11th Cir. 1987) (holding that the state trial court’s alleged errors in the Rule 3.850
proceedings did not undermine the validity of the petitioner’s conviction; therefore, the claim went
to issues unrelated to the cause of the petitioner’s detention and did not state a basis for habeas
relief).
Furthermore, Petitioner has not established that the state court’s denial of this ground is
contrary to, or an unreasonable application of, federal law. Petitioner’s contention that the staff
unconstitutional. See United States v. Matlock, 415 U.S. 164, 170 (1974) (“[T]he consent of one
who possesses common authority over premises or effects is valid as against the absent,
nonconsenting person with whom that authority is shared.”); see also United States v. Bomengo,
580 F.2d 173, 175 (5th Cir. 1978) (“The Fourth Amendment proscribes only governmental action.
A search by a private individual for purely private reasons does not raise Fourth Amendment
implications.”).
Page 33 of 41
attorney may have known the victim or her mother is purely speculation and is conclusory.
Moreover, as noted by the state court, the ultimate decision maker was the judge that signed each
order, not the staff attorney. See Doc. 15-19 at 54. Therefore, any purported conflict by the staff
attorney was harmless. Accordingly, this ground is denied.
E.
Ground Five
i.
Subpart a
Petitioner contends that juror misconduct occurred during the trial. (Doc. 1-1 at 18-20). In
support of this ground, Petitioner maintains that after his trial, he received an affidavit from
Jennifer Rowe (“Rowe”) in which she attested that she spoke to two unknown jurors while the trial
was occurring and one of the jurors said the case was “all over the news” and that Petitioner “did
it.” (Id.). Petitioner further notes that Rowe purportedly attested that one of the jurors told her that
“his girlfriend’s friend knew the alleged victim . . . and [the juror] had heard [the victim’s] side of
the ‘whole story’ through his girlfriend. . . .” (Id.).
Petitioner raised this ground in his fifth Rule 3.850 motion. The state court denied relief.
(Doc. 15-23 at 24-25). The state court reasoned that the jurors were informed by the trial court
multiple times that there was extended press coverage of the case. (Id. at 25). The state court further
noted that Rowe did not attest that the juror’s girlfriend had told him the victim’s story. (Id.).
Finally, the state court concluded that whether the jurors had been discussing the case and had
reached a decision about Petitioner’s guilt before deliberations inhered in the verdict and precluded
questioning of the jurors under state law. (Id).
The state court’s denial of this ground is not contrary to, or an unreasonable application of,
clearly established federal law. Initially, the Court notes that Rowe did not submit an affidavit, but
instead a letter containing what appears to be a notary stamp. See Doc. 15-21 at 39. The notary
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stamp, however, does not appear to comply with the requirements of Florida law. See Fla. Stat. §
117.05(4) (2016) (“When notarizing a signature, a notary public shall complete a jurat or notarial
certificate in substantially the same form as those found in subsection (13). The jurat or certificate
of acknowledgment shall contain the following elements: . . . (b) The type of notarial act
performed, an oath or an acknowledgment, evidenced by the words ‘sworn’ or ‘acknowledged.’. .
. . (f) The specific type of identification the notary public is relying upon in identifying the signer,
either based on personal knowledge or satisfactory evidence specified in subsection (5).”).
Moreover, Rowe did not indicate that the juror said that his girlfriend told him what the victim had
told his girlfriend’s friend. (Id.) Furthermore, the trial court advised the jurors throughout the trial
that there was media coverage of the case. (Doc. 28-2 at 197, 230). Therefore, the jurors of course
knew the case was publicized. Finally, Florida law prohibits questioning jurors about matters
which inhere in the verdict. See Sims v. State, 444 So. 2d 922, 925 (Fla. 1983). In Florida, whether
a juror engaged in premature discussion regarding guilt inheres in the verdict. See Reaves v. State,
826 So. 2d 932, 943 (Fla. 2002). Consequently, Petitioner was precluded from questioning the
jurors as to this matter. See Cole v. Crosby, Case No. 5:05-cv-222-Oc-10GRJ, 2006 WL 1169536,
*61 (M.D. Fla. May 3, 2006) (“[R]ules which prevent attorney interviews or other contact with
jurors, or preclude juror testimony where the subject inheres in the verdict itself have repeatedly
been applied in criminal cases and held constitutional.”); Sims v. Singletary, 155 F.3d 1297,
1312-13 (11th Cir. 1998) (applying Florida rule that juror testimony is not relevant unless it
concerns matters that do not essentially inhere in the verdict). Accordingly, this ground is denied
pursuant to § 2254(d).
ii.
Subpart b
Petitioner asserts that the victim told Angela Holloway (“Holloway”) after the trial that she
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wanted to have Petitioner arrested because Petitioner was cheating on her and she did not want to
divorce him because they would have to share custody of the children. (Doc. 1-1 at 20-21).
According to Petitioner, Holloway died a few months after telling him this information. (Id.).
Petitioner raised this ground in his fifth Rule 3.850 motion. The state court determined that
the ground was procedurally barred and otherwise without merit because Holloway’s statement
was inadmissible hearsay. (Doc. 15-23 at 26-29).
The state court found this ground to be procedurally barred. Therefore, it is procedurally
barred from review by this Court absent an exception to the procedural default bar. Petitioner has
not demonstrated cause or prejudice to excuse the procedural default. Likewise, he has not shown
the applicability of the actual innocence exception. A review of the record reveals that Petitioner
is unable to satisfy either of the exceptions to the procedural default bar. Therefore, this ground is
procedurally barred from review. 5
iii.
Subpart c
Petitioner maintains he discovered after the trial that Mullins incorrectly testified that he
was not aware of any other pornographic movies of Petitioner and the victim. (Doc. 1-1 at 21).
According to Petitioner, Mullins told him after the trial that he had seen pictures of Petitioner and
the victim making other bondage movies. (Id. at 22).
Petitioner raised this ground in his fifth Rule 3.850 motion. The state court determined that
Mullins’ purported recantation did not constitute newly discovered evidence. (Doc. 15-23 at 2629).
The state court’s denial of this ground is not contrary to, or an unreasonable application of,
5
Alternatively, this ground is denied on the merits. Holloway’s purported statement
regarding what the victim told her is inadmissible hearsay.
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clearly established federal law. “[T]he Supreme Court has held that ‘[c]laims of actual innocence
based on newly discovered evidence have never been held to state a ground for federal habeas
relief absent an independent constitutional violation occurring in the underlying state criminal
proceeding.’” Brownlee v. Haley, 306 F.3d 1043, 1065 (11th Cir. 2002) (quoting Herrera v.
Collins, 506 U.S. 390, 400 (1993)). Petitioner does not assert an independent constitutional
violation relating to Mullins’ purported recantation, and therefore, he is not entitled to federal
habeas relief. Furthermore, “evidence about the testimony of a putative witness must generally be
presented in the form of actual testimony by the witness or on affidavit. A defendant cannot simply
state that the testimony would have been favorable[.]” United States v. Ashimi, 932 F.2d 643, 650
(7th Cir. 1991) (footnotes omitted)). Petitioner has not offered an affidavit from Mullins
demonstrating he changed his trial testimony. Accordingly, this ground is denied pursuant to §
2254(d).
iv.
Subpart d
Petitioner asserts that after his trial, David Allen (“Allen”) notified him that two days
before the offenses, the victim told Allen that she and Petitioner had made bondage movies in the
past, they were about to make a “snuff” movie to sell to pay their mortgage, and she was thinking
about divorcing Petitioner because of their financial problems and because he had cheated on her.
(Doc. 1-1 at 23).
Petitioner raised this ground in his fifth Rule 3.850 motion. The state court determined that
Allen’s purported statements did not constitute newly discovered evidence. (Doc. 15-23 at 35-37).
The state court’s denial of this ground is not contrary to, or an unreasonable application of,
clearly established federal law. Petitioner does not assert an independent constitutional violation
relating to Allen’s purported statements, and therefore, he is not entitled to federal habeas relief.
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Furthermore, “evidence about the testimony of a putative witness must generally be presented in
the form of actual testimony by the witness or on affidavit. A defendant cannot simply state that
the testimony would have been favorable[.]” Ashimi, 932 F.2d at 650. Petitioner has not offered
an affidavit from Allen in either this Court or the state court demonstrating what testimony Allen
would have given had he testified. Accordingly, this ground is denied pursuant to § 2254(d).
F.
Ground Six
Petitioner asserts another claim of actual innocence in his Reply to the Second
Supplemental Response. (Doc. 38). In support of this ground, Petitioner filed an affidavit
purportedly written by Tamara Parsons (“Parsons”), which Petitioner maintains he received in
approximately May 2017. (Doc. 38 at 19). In the affidavit, Parsons, a resident of Titusville, Florida,
purportedly attests that on the date of the offenses, she was fishing on a boat, heard screaming, and
discreetly approached the area from which the screams emanated at which time she observed a
male and female. (Doc. 38-1 at 2-3). The affidavit further states that while Parsons observed the
couple, the female appeared to be directing the male as to what to do, was in control, and was not
in danger. (Id. at 3). The affidavit provides that Parsons does not know Petitioner or the victim and
did not come forward earlier because she did not know Petitioner had been arrested. (Id).
This ground was never raised in the state court. To the extent Petitioner attempts to
overcome his procedural default of this ground because it is newly discovered, the Court concludes
he has not demonstrated either cause and prejudice or actual innocence. Furthermore, Petitioner’s
claim of actual innocence based on Parson’s affidavit is not a cognizable ground for federal habeas
relief in the absence of an independent constitutional violation in his state criminal proceeding.
Finally, even if a claim of actual innocence was cognizable on habeas review, Petitioner
has failed to demonstrate that he is actually innocent of the offenses. “An actual-innocence claim
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must be supported ‘with new reliable evidence - whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.’”
Milton v. Sec’y, Dep=t of Corr., 347 F. App’x 528, 530-31 (11th Cir. 2009) (quoting Schlup v. Delo,
513 U.S. 298, 324 (1995)). To satisfy the “‘threshold showing of innocence’ justifying ‘a review
of the merits of the constitutional claims,’ the new evidence must raise ‘sufficient doubt about [the
petitioner’s] guilt to undermine confidence in the result of the trial.’” Id. at 531 (quoting Schlup,
513 U.S. at 317). “‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency.”
Id. (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)).
Parsons’ purported affidavit is not reliable evidence. First, the affidavit was drafted
approximately ten years after Petitioner was convicted. Second, there is no explanation as to how
Parsons discovered that Petitioner and the victim were the couple she saw ten years earlier, that
Petitioner had been convicted of offenses related to that incident, and how to contact Petitioner.
Third, despite attesting that she is a resident of Titusville, Parsons’ affidavit purportedly is
notarized by someone from New York. Fourth, the affidavit contains the name and address of an
attorney who has not entered a notice of appearance in this case and who did not sign the document.
Most importantly, in the state court, Petitioner filed an affidavit purportedly written by the victim,
which contained a notary stamp that was not affixed by the notary and that was found to be
fabricated by Petitioner. (Doc. Nos. 15-28 at 4-5; 15-14 at 53-56). In sum, Petitioner has not
presented new reliable evidence establishing he is actually innocent of the offenses. Accordingly,
this ground is denied.
Any of Petitioner’s allegations not specifically addressed herein have been found to be
without merit.
IV.
CERTIFICATE OF APPEALABILITY
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This Court should grant an application for certificate of appealability only if the petitioner
makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
make such a showing “the petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,
529 U.S. 473, 484 (2000); see also Lamarca v. Sec’y Dep’t of Corr., 568 F.3d 929, 934 (11th Cir.
2009). When a district court dismisses a federal habeas petition on procedural grounds without
reaching the underlying constitutional claim, a certificate of appealability should issue only when
a petitioner demonstrates “that jurists of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Id.; Lamarca, 568 F.3d at 934.
However, a prisoner need not show that the appeal will succeed. Miller-El v. Cockrell, 537 U.S.
322, 337 (2003).
Petitioner has not demonstrated that reasonable jurists would find the Court’s assessment
of the constitutional claims debatable or wrong. Moreover, Petitioner cannot show that jurists of
reason would find this Court’s procedural rulings debatable. Petitioner has failed to make a
substantial showing of the denial of a constitutional right. Thus, the Court will deny Petitioner a
certificate of appealability.
Accordingly, it is hereby ORDERED and ADJUDGED:
1. The Petition (Doc. 1) is DENIED, and this case is DISMISSED with prejudice.
2. Petitioner is DENIED a Certificate of Appealability.
3. The Clerk of the Court shall enter judgment accordingly and is directed to close this
case.
DONE AND ORDERED in Orlando, Florida, this 21st day of June, 2017.
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Copies to:
Christopher J. Wood
Counsel of Record
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