Hall v. Secretary, Department of Corrections et al

Filing 52

OPINION AND ORDER. Hall's petition for the writ of habeas corpus 1 is DENIED. The Clerk is directed to enter a judgment against Hall and CLOSE this case. A certificate of appealability is DENIED. Leave to appeal in forma pauperis is DENIED. Hall must obtain permission from the circuit court to appeal in forma pauperis. Signed by Judge Charlene Edwards Honeywell on 9/19/2022. (BGS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
WYNDEL R. HALL
Petitioner,
v.

Case No. 8:15-cv-108-CEH-AEP

SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
/
ORDER
This cause comes before the Court on Wyndel R. Hall’s petition for the writ of
habeas corpus under 28 U.S.C. § 2254. (Doc. 1) Hall challenges his state convictions
for sexual battery and resisting arrest without violence. Upon consideration of the
petition (Doc. 1), the response (Doc. 41), 1 and the reply (Doc. 45), and in accordance
with the Rules Governing Section 2254 Cases in the United States District Courts, the petition
will be DENIED.

An earlier order dismissed Hall’s federal petition as time-barred. (Doc. 26) On appeal
the United States Court of Appeals for the Eleventh Circuit reversed and remanded the case,
finding that Hall’s petition was timely filed. (Doc. 36)
1

Facts 2
On October 16, 2008, Hall was charged by amended information with two
counts of capital sexual battery under Section 794.011, Florida Statutes (1990). 3 The
victim is Hall’s niece by marriage. The conduct in Counts 1 and 2 was alleged to have
occurred between March 17, 1991, and March 16, 1993, when the victim was less than
twelve years of age. Before the trial the State filed a notice of its intent to introduce
evidence of other bad acts alleged to have been committed by Hall. More specifically,
the State sought to introduce evidence that Hall on one or more occasions between
December 13, 1984, and December 12, 1986, intentionally touched in a lewd or
lascivious manner another of his nieces, Jenice Coleman. Following a Williams Rule 4
hearing, the trial judge ruled that the “proposed testimony is not sufficiently similar to
that of [the victim] to permit its admission at trial.” (Doc. 42-2, Ex. 1 at 47) 5
During the trial the State sought to introduce into evidence an audio recording
of a controlled telephone call between Hall and his wife, Palmira Vasquez. The

This factual summary derives from Hall’s brief on direct appeal and the record.
(Doc. 42-2, Ex. 1; Doc 42-3, Exs. 2 and 3)
2

Count One charged Hall with capital sexual battery by penetrating the mouth of the
victim with his sexual organ. (Doc. 42-2, Ex. 1 at 26) Count Two charged Hall with capital
sexual battery by uniting the vagina of the victim with his sexual organ. (Id.) The amended
Information also charged Hall in Count Three with resisting an officer without violence. (Id.)
Hall pleaded guilty to Count Three before the trial began.
3

Under the Williams Rule, evidence of a collateral crime or an act factually similar to
the charged offense is admissible “[i]f found to be relevant for any purpose save that of
showing bad character or propensity.” Williams v. State, 110 So. 2d 654, 662 (Fla. 1959).
4

The page numbers cited in this Order correspond to the page numbers assigned to the
exhibits on the electronic docket in CM/ECF.
5

2

original recording included a reference to another unnamed family member that Hall
had allegedly molested. This reference was redacted from both the version of the audio
recording played for the jury and the transcript provided to the jury. During her
cross-examination of Hall, the prosecutor questioned Hall about the call. Hall testified
that parts of the call had been “cut out,” thus apprising the jury that the recording had
been altered. After lengthy discussion and argument by the parties, the trial judge
determined that the prosecutor could play the unredacted audio recording in its
entirety, which contained the accusations of other uncharged bad acts that the judge
had previously ruled inadmissible at the Williams Rule hearing.
The jury convicted Hall of the charge of capital sexual battery in Count 1 and
acquitted him on Count 2. Trial counsel subsequently filed a motion for new trial in
which Hall argued that he was denied a fair trial based on the playing of the unredacted
controlled phone call. The motion was denied and Hall was sentenced to life in prison
without the possibility of parole on Count 1 and to time served on Count 3. Hall
successfully moved to correct a sentencing error and was resentenced on Count 1 to
life imprisonment with the possibility of parole after twenty-five years. The state
appellate court affirmed Hall’s convictions and sentences and affirmed the denial of
his state Rule 3.850 motion for post-conviction relief.
Standard of Review
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
governs this proceeding. Wilcox v. Florida Dep’t of Corr., 158 F.3d 1209, 1210 (11th Cir.
1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a highly
3

deferential standard for federal court review of a state court adjudication, states 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 with respect to any claim that was
adjudicated on the merits in State court proceedings 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.
In Williams v. Taylor, 529 U.S. 362, 412–13 (2000), the Supreme Court
interpreted this deferential standard:
In sum, § 2254(d)(1) places a new constraint on the power
of a federal habeas court to grant a state prisoner’s
application for a writ of habeas corpus with respect to
claims adjudicated on the merits in state court. Under
§ 2254(d)(1), the writ may issue only if one of the following
two conditions is satisfied - - the state-court adjudication
resulted in a decision that (1) “was contrary to . . . clearly
established Federal Law, as determined by the Supreme
Court of the United States” or (2) “involved an
unreasonable application of . . . clearly established Federal
law, as determined by the Supreme Court of the United
States.” Under the “contrary to” clause, a federal habeas
court may grant the writ if the state court arrives at a
conclusion opposite to that reached by this Court on a
question of law or if the state court decides a case differently
than this 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 this
4

Court’s decisions but unreasonably applies that principle to
the facts of the prisoner’s case.
“The focus . . . is on whether the state court’s application of clearly established
federal law is objectively unreasonable, . . . an unreasonable application is different
from an incorrect one.” Bell v. Cone, 535 U.S. 685, 694 (2002). “As a condition for
obtaining habeas corpus from a federal court, a state prisoner must show that the state
court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S.
86, 103 (2011). Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) (“It is the
objective reasonableness, not the correctness per se, of the state court decision that we
are to decide.”). The phrase “clearly established Federal law” encompasses only the
holdings of the United States Supreme Court “as of the time of the relevant state-court
decision.” Williams, 529 U.S. at 412.
The purpose of federal review is not to re-try the state case. “The [AEDPA]
modified a federal habeas court’s role in reviewing state prisoner applications in order
to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given
effect to the extent possible under law.” Cone, 535 U.S. at 693. A federal court must
afford due deference to a state court’s decision. “AEDPA prevents defendants—and
federal courts—from using federal habeas corpus review as a vehicle to second-guess
the reasonable decisions of state courts.” Renico v. Lett, 559 U.S. 766, 779 (2010). See
also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“This is a ‘difficult to meet,’ . . . and
5

‘highly deferential standard for evaluating state-court rulings, which demands that
state-court decisions be given the benefit of the doubt’ . . . .”) (citations omitted).
In a per curiam decision without a written opinion, the state appellate court on
direct appeal affirmed Hall’s convictions and sentences. (Doc. 42-3, Ex. 6) In another
per curiam decision the state appellate court affirmed the denial of Hall’s Rule 3.850
motion. (Doc. 42-4, Ex. 16) The state appellate court’s affirmances warrant deference
under Section 2254(d)(1) because “the summary nature of a state court’s decision does
not lessen the deference that it is due.” Wright v. Moore, 278 F.3d 1245, 1254 (11th
Cir.), reh’g and reh’g en banc denied, 278 F.3d 1245 (2002), cert. denied sub nom Wright v.
Crosby, 538 U.S. 906 (2003). See also Richter, 562 U.S. at 99 (“When a federal claim
has been presented to a state court and the state court has denied relief, it may be
presumed that the state court adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the contrary.”).
Review of the state court decision is limited to the record that was before the
state court.
We now hold that review under § 2254(d)(1) is limited to
the record that was before the state court that adjudicated
the claim on the merits. Section 2254(d)(1) refers, in the past
tense, to a state-court adjudication that “resulted in” a
decision that was contrary to, or “involved” an
unreasonable application of, established law. This
backward-looking language requires an examination of the
state-court decision at the time it was made. It follows that
the record under review is limited to the record in existence
at that same time, i.e., the record before the state court.

6

Pinholster, 563 U.S. at 181–82. Hall bears the burden of overcoming by clear and
convincing evidence a state court factual determination. “[A] determination of a
factual issue made by a State court shall be presumed to be correct. The applicant shall
have the burden of rebutting the presumption of correctness by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a
finding of fact but not to a mixed determination of law and fact. Parker v. Head, 244
F.3d 831, 836 (11th Cir.), cert. denied, 534 U.S. 1046 (2001).
Standard for Ineffective Assistance of Counsel
Hall claims ineffective assistance of counsel, a difficult claim to sustain. “[T]he
cases in which habeas petitioners can properly prevail on the ground of ineffective
assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d 1506, 1511
(11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)).
Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains that Strickland v.
Washington, 466 U.S. 668 (1984), governs an ineffective assistance of counsel claim:
The law regarding ineffective assistance of counsel claims is
well settled and well documented. In Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), the Supreme Court set forth a two-part test for
analyzing ineffective assistance of counsel claims.
According to Strickland, [f]irst, the defendant must show
that counsel’s performance was deficient. This requires
showing that counsel made errors so serious that counsel
was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial

7

whose result is reliable. Strickland, 466 U.S. at 687, 104 S.
Ct. 2052.
Strickland requires proof of both deficient performance and consequent
prejudice. Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an
ineffective assistance claim . . . to address both components of the inquiry if the
defendant makes an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When
applying Strickland, we are free to dispose of ineffectiveness claims on either of its two
grounds.”). “[C]ounsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.”
Strickland, 466 U.S. at 690. “[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.” 466 U.S. at 690. Strickland requires
that “in light of all the circumstances, the identified acts or omissions were outside the
wide range of professionally competent assistance.” 466 U.S. at 690.
Hall must demonstrate that counsel’s alleged error prejudiced the defense
because “[a]n error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.” 466 U.S. at 691. To meet this burden, Hall must show “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.” 466 U.S. at 694.

8

Strickland cautions that “strategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on
investigation.” 466 U.S. at 690–91. Hall cannot meet his burden merely by showing
that the avenue chosen by counsel proved unsuccessful.
The test 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 . . . . 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). Accord Chandler v.
United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial
lawyers, in every case, could have done something more or something different. So,
omissions are inevitable . . . . [T]he issue is not what is possible or ‘what is prudent or
appropriate, but only what is constitutionally compelled.’”) (en banc) (quoting Burger
v. Kemp, 483 U.S. 776, 794 (1987)).
Under 28 U.S.C. § 2254(d) Hall must prove that the state court’s decision was
“(1) . . . contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States or (2) . . . based
on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” Sustaining a claim of ineffective assistance of counsel is very
difficult because “[t]he standards created by Strickland and § 2254(d) are both ‘highly
9

deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Richter, 562
U.S. at 106. See also Pinholster, 563 U.S. at 202 (a petitioner must overcome this
“‘doubly deferential’ standard of Strickland and [the] AEDPA”), Johnson v. Sec’y, Dep’t
of Corr., 643 F.3d 907, 911 (11th Cir. 2011) (“Double deference is doubly difficult for
a petitioner to overcome, and it will be a rare case in which an ineffective assistance of
counsel claim that was denied on the merits in state court is found to merit relief in a
federal habeas proceeding.”), and Pooler v. Sec’y, Dep’t of Corr., 702 F.3d 1252, 1270
(11th Cir. 2012) (“Because we must view Pooler’s ineffective counsel claim—which is
governed by the deferential Strickland test—through the lens of AEDPA deference, the
resulting standard of review is ‘doubly deferential.’”), cert. denied, 134 S. Ct. 191 (2013).
Ground One
Hall contends that his trial counsel rendered ineffective assistance by not
moving to suppress the controlled telephone call between he and his wife. Hall alleges
that counsel (1) “failed to discover that Detective Troy Mann did not state the time,
date, or place the call was to have been made,” (2) “failed to discover that at the
beginning of the call the Petitioner’s wife[,] Palmira Vasquez[,] states that the person
she describes as the Petitioner had hung up and that he was going to call back,” and
(3) “failed to discover that there were no phone records presented in the discovery to
clarify that a call was made from the Petitioner’s phone to Ms. Vasquez on the day in
question.”

(Doc. 1 at 4–5)

Hall argues that his counsel “was deficient in his

performance for not being aware of the fact that authentication or identification of

10

evidence is required as a condition precedent to its admissibility.” (Id. at 5) Hall
alleges that he was prejudiced by counsel’s alleged error because “the call pertained to
sexual allegations made by the alleged victim . . . and counsel should have known that
the phone call would hinder his rights to a fair trial.” (Id.)
The state post-conviction court denied this ground of ineffective assistance of
counsel as follows (Doc. 42-4, Exhibit 15 at 58) (court’s record citations omitted):
In claim 1, Defendant argues that trial counsel should have
filed a Motion to Suppress or a Motion in Limine to keep
the controlled phone call out of evidence. Defendant argues
that the time, date and place of the call were not made
known on the recording and that there is no proof
Defendant was the person who called back when the initial
call made by the victim’s aunt was dropped. The Court finds
that there was testimony as to the date, time and place of
the call. Det. Troy Mann testified that the phone call was
made from Ms. Vazquez’s home and it was made on July
8, 2008. Ms. Vazquez testified that the phone call was made
on July 8, 2008. When Defendant called Ms. Vazquez after
the initial call was dropped, he identified himself as
Wyndel. Additionally, Defendant took the stand and
acknowledged that he was on the other end of the controlled
phone call. The Court finds that had a Motion to Suppress
or Motion in Limine been filed, it would have been denied.
Defendant cannot establish deficient performance or
prejudice.
As in his Rule 3.850 motion, Hall presents no valid basis for suppression of the
controlled call. He presents no evidence to support his contention that counsel was
unaware of either the content of the call or the requirements for admissibility of the
evidence. Moreover, the state court has answered the question of how the court would
have resolved a motion to suppress the recording on the basis Hall suggests—the
motion would have been denied. Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1297 (11th Cir.
11

2017) (“[A]n attorney will not be held to have performed deficiently for failing to
perform a futile act, one that would not have gotten his client any relief.”). This court
must abide by the state court’s interpretation of state law. See Bradshaw v. Richey, 546
U.S. 74, 76 (2005) (“We have repeatedly held that a state court's interpretation of state
law . . . binds a federal court sitting in habeas corpus.” (citations omitted)); Herring v.
Sec'y, Dep’t of Corr., 397 F.3d 1338, 1354–55 (11th Cir. 2005) (“It is a ‘fundamental
principle that state courts are the final arbiters of state law, and federal habeas courts
should not second-guess them on such matters.’”) (quoting Agan v. Vaughn, 119 F.3d
1538, 1549 (11th Cir. 1997)). Because counsel had no basis to move to suppress the
recording as Hall suggests, he fails to establish that the state court either unreasonably
applied Strickland or unreasonably determined the facts by rejecting this ground of
ineffective assistance of counsel. 28 U.S.C. § 2254(d)(1), (d)(2).
Ground Two
Hall contends that his trial counsel rendered ineffective assistance by not
“review[ing] the redacted portions of the CD recording prior to trial and fail[ing] to
move for a mistrial once it had been played.” (Doc. 1 at 7) Hall alleges that his counsel
advised him before the trial that the prosecutor had redacted from the audio recording
of the controlled call an excerpt in which Hall’s wife, Palmira Vasquez, stated that the
victim told her that she (the victim) was “not the only family member [Hall] molested.”
(Id. at 8) Hall asserts that this excerpt remained on the recording that was played for
the jury at the trial. He argues that he suffered prejudice as a result of counsel’s alleged
error because, when questioned on cross-examination about this portion of the
12

recording, he testified that parts of the recording had been “cut out,” resulting in the
trial judge allowing the jury to hear the unredacted recording in its entirety.
The state post-conviction court denied this ground of ineffective assistance of
counsel as follows (Doc. 42-4, Exhibit 15 at 58) (court’s record citation omitted):
In [this] claim . . . Defendant argues that trial counsel failed
to review the redacted cd of the controlled phone call and
allowed it to be played in its original form. The record
refutes the Defendant’s claim. The cd was edited to remove
the portion of the conversation where Ms. Vazquez
indicates that there are other relatives that have accused the
Defendant of sexual assault. The redacted cd did not
reference any other bad acts or crimes. When the Defendant
mentioned that the cd had been edited, the State was
allowed to play the cd in its entirety. Defense counsel did
object at the time and did move for a new trial after
Defendant’s conviction. Defendant has not established
deficient performance.
The unedited transcript of the controlled call includes the following excerpt
(Doc. 42-2, Ex. 1 at 109) (emphasis added):
VASQUEZ: Um, just mentally. You know, just, you know,
and her talking to me and basically what she said is that she
was not the only family member that you molested.
HALL: That (inaudible). There ain’t been nobody else.
VASQUEZ: (inaudible) I know you said, you said that
before, but, she said that you are not and . . .
HALL: That’s the only person, Palmira.
During the direct examination of Vasquez the prosecutor played for the jury a
redacted version of the controlled call that did not include the portion of Vasquez’s
statement about the other family member (Doc. 42-3, Ex. 2 at 104, 109):
13

(The recording was played to the jury and transcribed by the
court reporter to the best of her ability as follows:)
....
MS. VASQUEZ: Just mentally. You know, just, you know,
in her talking to me, and basically what she said.
MR. HALL: That’s it. There ain’t nobody else.
MS. VASQUEZ: I know, you said—you said that before.
But she said that you are not and—
MR. HALL: That’s the only person, Palmira.
In the subsequent cross-examination of Hall, the prosecutor inquired about the
redacted excerpt of the call and Hall testified that parts of the call were “cut out”
(Doc. 42-3, Exhibit 2 at 172–73):
[PROSECUTOR]: Okay. Then at the end of the
conversation, Ms. Vasquez said, “You know, just, you
know, and her talking to me and basically what she said is
she—and then you said, “there ain’t been nobody else.”
[HALL]: Okay.
[PROSECUTOR]: And then she said, “I know, you said
that before.” And then you said, “That’s the only person,
Palmira.”
[HALL]: Okay. There’s parts cut out of that, ma’am. And
that’s the reason for that response.
[PROSECUTOR]: What part was cut out?
[HALL]: I don’t know.
Based on Hall’s response, the prosecutor requested a sidebar and the jury was
removed from the courtroom. The trial judge inquired of the prosecutor and defense
14

counsel about Hall’s testimony about the redacted recording (Doc. 42-3, Ex. 2 at 173–
86):
THE COURT: Remember the Williams Rule hearing?
Anybody remember that? Yes?
[PROSECUTOR]: Yes, Your Honor.
THE COURT: Tell me if I’m crazy or not. Nothing was
ever said at that hearing that there was a controlled phone
call. Am I right or wrong? We certainly did not play the
phone call, did we?
[PROSECUTOR]: (Nods head).
THE COURT: What I had, as I remember, and I don’t want
to remember things wrong. What I had to go by when I
made that ruling was the second girl’s testimony. I’m sorry,
I don’t recall her name.
[PROSECUTOR]: Janice Coleman.
THE COURT: Coleman. And I had, you know, I said,
okay, now I know what Ms. Coleman is going to say. In
order to decide if this is admissible, I also kind of need to
know what the victim is going to say. Right? Yes?
[PROSECUTOR]: Yes, Your Honor.
THE COURT: And we kind of talked about that. And you
said, well, Judge, you can read the complaint affidavit.
That’s more or less what she’s going to testify to. And I
think [defense counsel] pointed out some things that might
have been somewhat inconsistent between that and the
deposition. But by and large, that’s what I was given to go
by; is it not? [Defense counsel], do you disagree?
[DEFENSE COUNSEL]: No, Your Honor.
THE COURT: That’s what I had to work with, right? Okay.
I first—if I knew about the controlled call before, I had
15

forgotten it. Maybe I did. I have dealt with this case since
before [defense counsel].
There’s nothing in the complaint affidavit, unless I’m
wrong, that refers to behaviors other than what he is
supposed to have done with [the victim]. Is there any
reference anywhere at all in that complaint affidavit to the
defendant having done anything to Ms. Coleman or
anybody other than [the victim]?
I can make it easy for you. There’s nothing in there about
it. So therefore, when I get here today, the state
introduces—
[PROSECUTOR]: Your Honor, I would point out in the
complaint affidavit that Vasquez then asked him if there
were other family members that he molested.
THE COURT: And he said no.
[PROSECUTOR]: Mr. Hall told her that [the victim] was
the only one.
THE COURT: Okay. When I get here today, the state
introduces the CD of this phone call. [Defense counsel]
asked for a side bar because of something that he picked up
on and it led him to think maybe we were playing the
original recording. We made it clear, no, this is the edited
recording that the state attorney and defense attorney
agreed to. Right? Is that what happened today? It should be
on the record. That’s exactly what happened, isn’t it?
[DEFENSE COUNSEL]: Yes, sir.
THE COURT: Would you agree that that is the first time
that the Court ever knew there was an edited recording of
the phone call?
[PROSECUTOR]: Yes, Your Honor.
[DEFENSE COUNSEL]: Yes, Your Honor.

16

THE COURT: Do we have a transcript of the unedited
version of the phone call?
[PROSECUTOR]: We do, Your Honor.
....
THE COURT: Okay. For the record, and this is Ms.
Vasquez speaking, she said, “Um, just mentally. You know,
just, you know, and her talking to me and basically what
she said is, she was not the only family member that you
molested.” And the defendant said, “That’s it, there ain’t
been nobody else.” So sort of the second half of one
sentence is what has been redacted?
[PROSECUTOR]: Correct.
[THE COURT]: Do you agree with that, [defense counsel]?
[DEFENSE COUNSEL]: Yes. Yes, sir.
THE COURT: Now that the record is clear, what is it that
you expect me to do now?
[PROSECUTOR]: Your Honor, since the defendant said
that it was edited or there was parts missing, I would ask
that we be able to play the CD in its original form.
THE COURT: What do you say to that, [defense counsel]?
[DEFENSE COUNSEL]: I don’t see any reason to do that.
....
THE COURT: You know, this trial, this case is just the gift
that keeps on giving, isn’t it? You’re going to hate me. I
want you to find the two questions before I sent the jury out
and read them to me.
(The court reporter reads back last two questions.)
THE COURT: The word blow job in that recording, the
state’s take on it is that the woman said, she said you made
17

her give you a blow job and that the defendant said, yes, I
did. And the defense’s take on it is, well, she mentioned the
blow job and that’s not what I was admitting to. This whole
dadburn case comes down to the interpretation given that
line of the transcript.
And then the next question, I’m sorry, read it to me again,
the question that followed the blow job question.
(The court reporter reads back question at this time.)
THE COURT: That’s when he said it had been redacted.
Now both of you are intelligent enough to know where the
land mine is in this transcript. Mr. Hall, you’re intelligent
enough to know that. [Prosecutor], you’re intelligent
enough to know that. Why either one of you would risk
stepping on it is absolutely beyond me. What is—why
would you have even asked that question?
[PROSECUTOR]: Because I think that’s a direct admission
when he says, there ain’t been nobody else.
THE COURT: Doesn’t that kind of imply that he had been
accused of doing something to somebody else? Or is that
just something we know because we know he has?
[PROSECUTOR]: I think—I mean, again, it is an
admission.
THE COURT: Here is the thing. This is something I really
want to ask everybody. You know, I don’t try to tell people
how to try their cases. And just because I’ve tried a lot of
cases doesn’t mean I did any better job than anybody else. I
lost my share and I did my share of dumb things in the
courtroom.
The transcript speaks for itself. We know what he said. So
trying to put spin on what he said is for closing argument. I
just don’t know what you think you’re accomplishing. I
mean, most of the time I direct these remarks at the
prosecutors.

18

When you have the defendant on the witness stand, it seems
to me half of the people in the State Attorney’s Office think
they can somehow get the defendant to say, [prosecutor],
you got me there. You’re right. You’re too fast for me, I did
it, I’m guilty. They’re not going to change their story. But
you’re right there two inches from a mine field and you
decide you want to walk through it.
Mr. Hall—
THE DEFENDANT: Yes, sir.
THE COURT: — just man to man from me to you, you
know good and well why that tape is excised is because you
know good and well that your lawyer has fought tooth and
nail to keep this jury from hearing about the other stuff you
have been accused of doing. You knew that, but yet you
chose to make a remark about the thing being edited. So
therefore, now we’ve got this jury thinking, well, the cops
messed with that tape. So I don’t know what to do. If I could
just fine people for being stupid, this would be easy.
[Defense counsel], I’m very concerned about what this jury
is going to think of what Mr. Hall said, as ill-advised as the
question itself might have been. I’m very concerned about
it. It seems to me like they are going to come away thinking
this thing was doctored, and doctored in such a way as to
make it look worse for him than it actually is. You know,
this is a classic case of somebody’s client getting on the
stand and letting his mouth override his brain. Have you got
a response . . . ?
[DEFENSE COUNSEL]: Judge, I don’t have a response, I
have a comment. My concern is the same as your own. I
don’t know how a jury hears—moves forward knowing we
have a statement out there.
Originally, my fault on this matter was [the prosecutor]
came to me earlier and said she was going to redact this,
showed me the redaction. I made a mistake, I did not ask
her to also redact the following two lines that followed that
question. “That’s it, there ain’t been nobody else” and
“that’s the only person, Palmira.” And I have been thinking
19

about it all day, but it is a mistake and I own that mistake
and I have allowed this to get to this situation because of
my choice.
THE COURT: Okay. We ain’t having no throwing yourself
on a sword here . . . .
[DEFENSE COUNSEL]: I’m not throwing myself on a
sword. My point is, if you’re asking for a cure, I don’t know
what the cure is.
THE COURT: I do. I’ll tell you what, I have gotten
round-about answers to half of the questions I have asked
here in this trial. I’m going to grant the state’s motion.
We’re going to play the whole thing. Mr. Hall, you did this
to yourself.
THE DEFENDANT: She asked me the question, Your
Honor.
THE COURT: Mr. Hall—
THE DEFENDANT: She shouldn’t have asked me the
question. How can I answer half a question?
THE COURT: — if you argue with me, because, sir, let me
tell you what, that would be even stupider than what you
have already done to argue with me. We’re playing the tape.
We’re playing the whole thing. You’re lucky I don’t let the
Williams Rule witness come in here and fill in the gaps, too,
because, brother, I’m going to tell you something, she got
excluded for one reason only and that is because it doesn’t
qualify as Williams Rule evidence. It don’t mean that I
don’t think it might have happened. It means that the state
didn’t have the legal authority to use it. And here we play
games and we step on a land mine and it blows up.
THE DEFENDANT: I wasn’t trying to—
THE COURT: Don’t you talk to me again. Don’t say
another word to me for the rest of this day. Bring the jury
in.
20

THE BAILIFF: Yes, sir.
[DEFENSE COUNSEL]: Judge, for economy sake, I have
no objection obviously to just playing the tape, however you
want to do it and proceed is fine with me.
The unredacted audio recording of the controlled call was then played for the
jury. (Doc. 42-3, Ex. 2 at 187–92)
Contrary to Hall’s contention, the challenged statement about the molestation
of other family members was not played for the jury during Vasquez’s testimony and
the redacted version did not reference other bad acts or other alleged victims. Only
after Hall testified about the recording being edited did the trial judge allow the
unredacted version to be played for the jury. When the trial judge inquired of trial
counsel about whether to grant the State’s request to play the unredacted version,
counsel stated, “I don’t see any reason to do that.” (Doc. 42-3, Ex. 2 at 180) Although
not phrased as a formal objection, counsel did not initially agree to the State playing
the unredacted version. 6 Once the trial judge made clear that the unredacted version
would be played for the jury, counsel did not object to the court’s procedure for playing
the recording. Given the trial judge’s discussion on the admission of the unredacted
recording as a result of Hall’s trial testimony, Hall fails to show that a more formal or

After the trial, counsel unsuccessfully moved for a new trial based on the admission
of the unredacted recording. (Doc. 42-2, Ex. 1 at 54–57) Hall subsequently argued in his
direct appeal that he “was denied a fair trial when Judge Raiden granted the prosecutor’s
request to play the unredacted tape which informed the jury there had been other accusations
of sexual misconduct against Mr. Hall.” (Doc. 42-3, Ex. 3 at 299) The State argued in its
appellate brief that Hall failed to preserve this issue for appeal based on a lack of objection at
trial and “therefore, a fundamental error standard of review applies.” (Doc. 42-3, Ex. 4 at 325)
The state appellate court per curiam affirmed Hall’s convictions. (Doc. 42-3, Ex. 6)
6

21

further objection would have resulted in the exclusion of the unredacted recording.
Hall fails to meet his burden of proving that the state court either unreasonably applied
Strickland or unreasonably determined the facts by rejecting this ground of ineffective
assistance of counsel. 28 U.S.C. § 2254 (d)(1), (d)(2).
Ground Three
Hall contends that his trial counsel rendered ineffective assistance by not calling
his son, Wyndel Hall, Jr., to testify in his defense. Hall claims that his son “would
have testified that he’s never observed any sexual misconduct between the petitioner
and [the victim], that [the victim] never told him of any sexual misconduct on the part
of the petitioner, that he’d shared the same bedroom with [the victim], and that she
had reason to lie because she was unhappy that the petitioner had remarried her aunt
and was financially secure, and was not helping her financial situation.” (Doc. 1 at 10)
Hall alleges that his son’s testimony would have refuted the victim’s allegations “that
as she got older she told several people about the incidents, along with [Hall’s son].”
(Id.)
The state post-conviction court denied this ground of ineffective assistance of
counsel as follows (Doc. 42-4, Exhibit 15 at 58) (court’s record citations omitted):
. . . . Defendant argues that trial counsel failed to call
Wyndel Hall Jr. as a witness. Mr. Hall would have testified
that the Defendant did not sneak into the room he shared
with the victim and that the victim did not confide in him.
The Court finds that such testimony would not likely
change the outcome of the trial. The victim testified that the
event occurred in the bathroom or in Defendant’s own
room. Nobody was around when the incidents occurred.
Furthermore, the victim cannot remember when she told
22

Mr. Hall Jr. that the Defendant has sexually battered her.
This would have occurred years after the abuse.
Hall’s unsupported contention that counsel should have called his son to testify,
without more, is insufficient to warrant relief. See, e.g., Bray v. Quarterman, 265 F.
App’x 296, 298 (5th Cir. 2008) (“To prevail on [a claim of ineffective assistance of
counsel for failing to call a witness], the petitioner must name the witness, demonstrate
that the witness was available to testify and would have done so, set out the content of
the witness’s proposed testimony, and show that the testimony would have been
favorable to a particular defense.”); United States v. Ashimi, 932 F.2d 643, 650 (7th Cir.
1991) (“[E]vidence about the testimony of a putative witness must generally be
presented in the form of actual testimony by the witness or an affidavit. A defendant
cannot simply state that the testimony would have been favorable; self-serving
speculation will not sustain an ineffective assistance claim.”) (footnotes omitted).
“[M]ere speculation that missing witnesses would have been helpful is insufficient to
meet the petitioner’s burden of proof.” Streeter v. United States, 335 F. App’x 859, 864
(11th Cir. 2009). Hall fails to show that the outcome of his trial would have been
different if trial counsel had called his son to testify. Because he shows no prejudice,
Hall’s claim of ineffective assistance of counsel warrants no federal habeas relief
because Strickland’s requirements remain unsatisfied. Hall fails to establish that the
state court either unreasonably applied Strickland or unreasonably determined the facts
by rejecting this ground of ineffective assistance of counsel. 28 U.S.C. § 2254(d)(1),
(d)(2).
23

Ground Four
Hall contends that his trial counsel rendered ineffective assistance by not
objecting to the allegedly improper cross-examination of Hall about the redacted
recording of the controlled call. Hall alleges that his trial counsel was aware that the
trial judge “had made a prior ruling before trial that the prosecution may not refer to
any testimony given by the alleged victim’s cousin . . . about allegations of sexual
misconduct by the petitioner.”

(Doc. 1 at 13)

Hall asserts that during

cross-examination the prosecutor tried to elicit from him testimony about alleged
misconduct with the victim’s cousin and that his counsel’s “spontaneous response
caused the court to make the unfair and improper decision to play the CD in its
entirety.” (Id.)
The state post-conviction court denied this ground of ineffective assistance of
counsel as follows (Doc. 42-4, Exhibit 15 at 58–59) (court’s record citation omitted):
Defendant argues that trial counsel failed to object to the
State Attorney’s improper cross examination of the
Defendant. The Court does not find that the State Attorney
engaged in improper cross examination. The State Attorney
was referencing parts of the controlled phone call that had
already been played for the jury. The Defendant then chose
to testify that the cd had been edited.
Hall fails to establish that the portion of the cross-examination that he
challenges was improper. Because he satisfies neither requirement of Strickland, Hall
cannot show entitlement to relief. The state courts' rejection of this ground is neither
contrary to, or an unreasonable application of, Strickland nor was the ruling based on

24

an unreasonable determination of the facts in light of the evidence presented in the
state court. 28 U.S.C. § 2254(d)(1), (d)(2).
Ground Five
Hall contends that his attorney rendered ineffective assistance by not retaining
either Robert Berland or Valerie McLain as an expert witness and by not moving to
have the victim examined “to show that she had never suffered the symptoms and
diagnostic

criteria

typically

A[ccommodation] S[yndrome].”

associated

with

(Doc. 1 at 15)

C[hild]

S[exual]

A[buse]

Hall alleges that “had counsel

retained the services of one or both of these mental health experts and moved to have
[the victim] examined, it is probable that exculpatory evidence would have surfaced
that [the victim] was not showing signs of CSAAS and in their expert opinions, it was
unlikely that she was sexually abused as a child.” (Id.) The state post-conviction court
denied this ground of ineffective assistance of counsel, concluding “that such evidence,
if obtained, would not change the outcome of trial.” (Doc. 42-4, Exhibit 15 at 59)
In assessing a lawyer’s performance, “[c]ourts must ‘indulge [the] strong
presumption’ that counsel’s performance was reasonable and that counsel made all
significant decisions in the exercise of reasonable professional judgment.” Chandler,
218 F.3d at 1314. See also, Dingle v. Sec’y, Dep’t of Corr., 480 F.3d 1092, 1099 (11th Cir.
2007) (“Even if counsel’s decision . . . appears to have been unwise in retrospect, the
decision will be held to have been ineffective assistance only if it was so patently
unreasonable that no competent attorney would have chosen it.”); Waters v. Thomas,
46 F.3d 1506, 1512 (11th Cir. 1995) (en banc) (“[W]hich witnesses, if any, to call, and
25

when to call them, is the epitome of a strategic decision.”). Hall’s unsupported
contention that counsel should have called either Robert Berland or Valerie McLain
as an expert witness, without more, is insufficient to warrant relief. See Bray, 265 F.
App’x at 298; Ashimi, 932 F.2d at 650.
Hall has not established that either Berland or McClain would have testified
that the victim did not meet the diagnostic criteria for CSAAS or that either expert
would have opined that the victim was not sexually abused as a child. “Without some
specificity as to the proposed expert’s testimony, any assertion that an expert would
testify consistently with [a petitioner’s] claims is mere speculation and does not entitle
him to habeas relief.” Finch v. Sec’y, Dept of Corr., 643 F. App’x 848, 852 (11th Cir.
2016). Hall fails to show that the outcome of his trial would have been different if trial
counsel had called either witness to testify. See Dorsey v. Chapman, 262 F.3d 1181, 1186
(11th Cir. 2001) (holding that the petitioner did not establish ineffective assistance of
counsel based on defense counsel's failure to call an expert witness because the
petitioner failed to show that counsel's decision was so patently unreasonable that no
competent attorney would have chosen that strategy), cert. denied, 535 U.S. 1000
(2002). Because he shows no prejudice, Hall’s claim of ineffective assistance of
counsel warrants no federal habeas relief because Strickland’s requirements remain
unsatisfied. Hall fails to establish that the state court either unreasonably applied
Strickland or unreasonably determined the facts by rejecting this ground of ineffective
assistance of counsel. 28 U.S.C. § 2254(d)(1), (d)(2).

26

Ground Six
Hall contends that his trial counsel rendered ineffective assistance by not
objecting to the prosecutor giving the jury an un-edited copy of the transcript of the
controlled phone call and by not reviewing the transcript before it was given to the
jury.

Hall alleges that such errors resulted in prejudice “because the un-edited

transcript referred to allegations of other bad acts or wrongs made by the alleged
victim’s cousin . . . .” (Doc. 1 at 18) The state post-conviction court concluded that
the trial transcript refutes this ground and denied relief.7 (Doc. 42-4, Exhibit 15 at
59) Hall argues in his reply that the state court relied on the wrong page of the trial
transcript to refute his claim and that the record shows that the State gave to the jury
an unedited copy of the transcript. (Doc. 45 at 6)
The record shows that the State introduced into evidence a transcript of the
controlled call. (Doc. 42-3, Ex. 2 at 103–04) Hall presents no evidence establishing
that the transcript was an unredacted copy as he contends. Moreover, in his motion
for a new trial Hall acknowledged that the State used a redacted transcript. (Doc. 42-4,
Ex. 15 at 86) The state courts’ rejection of this ground of ineffective assistance of
counsel was neither contrary to, or an unreasonable application of, Strickland nor was

The state post-conviction court relied on an excerpt of page 379 of the trial transcript
in which the trial judge determined that the jury would hear the complete recording of the
telephone call but without an unredacted transcript (Doc. 42-3, Ex. 2 at 187):
7

THE COURT: Members of the jury, we’re going to play the
complete recording of the phone call. This is the complete
recording of the phone call. You don’t have a transcript to
follow. State, play it.

27

the ruling based on an unreasonable determination of the facts in light of the evidence
presented in the state court. 28 U.S.C. § 2254(d)(1), (d)(2).
Grounds Seven and Eight
In Ground Seven Hall contends that his trial counsel rendered ineffective
assistance by not objecting to the State’s use of “bad acts” evidence, including the
controlled call, and not objecting to such evidence becoming a feature of the trial. Hall
generally refers to “[t]he statements of [the victim] and Palmira Vasquez which w[ere]
not admitted into evidence” and to “uncharged crime evidence” as the basis for this
ground. (Doc. 1 at 28–29) Hall offers no greater specificity in his reply. (Doc. 45
at 7–8)
In Ground Eight Hall contends that his trial counsel rendered ineffective
assistance by not moving for a mistrial “when the court committed reversible error by
providing the jury during deliberations the un-redacted CD of the controlled phone
call after the court had properly excluded portions of the conversation in limine which
mentions the defendant had committed similar acts but at other times not charged in
the information.” (Doc. 1 at 22)
The allegations Hall presents in Grounds Seven and Eight of the federal petition
are a combination of the allegations raised in claims seven and eight of his Rule 3.850
motion. (Doc. 42-4, Ex. 14 at 26–31) The state post-conviction court denied these
grounds of ineffective assistance of counsel as follows (Doc. 42-4, Exhibit 15 at 59):
In claim 7, Defendant argues that trial counsel failed to
object to the introduction of other bad acts/crimes.
Defendant fails to point out which bad acts were
28

introduced. Upon reading of the transcript, the case focused
on the crimes charged. The Court does not see any reference
to other bad acts/crimes until the original cd was played
after the Defendant mentioned that it had been edited. At
that point the jury learned that another relative had accused
the Defendant of similar crimes.
In claim 8, Defendant argues that trial counsel should have
moved for a mistrial when the introduction of other bad
acts, William’s Rule evidence and the controlled phone call
became the main feature at trial. Again, the Court would
point out that other bad acts did not come into evidence
until the Defendant referenced the edited cd. No William’s
Rule evidence was presented and the controlled phone call
was an admissible piece of evidence. The Court does not
find deficient performance or prejudice.
As the state court noted, once Hall testified about the edited controlled call, the
trial judge allowed the unredacted audio recording to be played for the jury. 8
Accordingly, the references to other bad acts included on the recording were properly
before the jury. Hall presents no viable challenge to the admissibility of either the
unredacted recording or other bad acts. Moreover, in Florida, “[a] motion for a
mistrial should only be granted when an error is so prejudicial as to vitiate the entire
trial.” England v. State, 940 So. 2d 389, 401–02 (Fla. 2006). See also Fletcher v. State,
168 So. 3d 186, 207 (Fla. 2015) (“[T]he standard for a motion for mistrial is high[.]”).
Hall fails to show that a motion for mistrial would have been granted on the basis he
suggests in light of his testimony about the edited call. The state post-conviction court

As noted earlier, when the prosecutor asked the trial judge to allow the entire
controlled call to be played for the jury once Hall testified that parts of the call had been “cut
out,” trial counsel did not agree that the unredacted call should be played, stating that he “did
not see any reason to do that.” (Doc. 42-3, Ex. 2 at 180)
8

29

neither unreasonably applied controlling Supreme Court precedent nor unreasonably
determined the facts by rejecting these grounds of ineffective assistance of counsel. 28
U.S.C. § 2254(d)(1), (d)(2).
Ground Nine
Hall alleges that “Florida Statute[] § 794.011 (2) has been unconstitutional since
1981 and the Florida Legislature refuses to amend the statute, therefore, the offense of
capital sexual battery does not constitutionally exist.” (Doc. 1 at 21) He asserts that
the state court committed reversible error by overlooking this ground, resulting in a
violation of his rights under the Fifth, Sixth, and Fourteenth Amendments.
Hall presented this challenge to the constitutionality of the statute to the state
court in his original Rule 3.850 motion and his amended Rule 3.850 motion filed in
January 2014. 9 (Doc. 45-3, Ex. 11 at 402–06; Ex. 12 at 455) The state post-conviction
court dismissed the amended Rule 3.850 motion without prejudice based on Hall’s
failure to include a certification and allowed Hall the opportunity to file a facially
sufficient motion. (Doc. 42-3, Ex. 13) When Hall filed his subsequent Rule 3.850
motion in February 2014 he did not include a challenge to the constitutionality of the
state statute as a ground for relief in the body of the motion. (Doc. 42-4, Ex. 14) The
Respondent asserts that, because Hall attached “claim 9” as an exhibit to his properly
filed Rule 3.850 motion rather than presenting it in the motion as a claim for relief,

Hall raised this claim as ground nine of his original Rule 3.850 motion. (Doc. 42-3,
Ex. 11 at 402–06) Although he did not specifically designate ground nine in his amended Rule
3.850 motion, Hall includes ground nine in his “memorandum of law” in his amended Rule
3.850 motion. (Doc. 42-3, Ex. 12 at 455)
9

30

Hall “abandoned and waived” the claim, rendering it unexhausted and procedurally
barred from federal review. (Doc. 41 at 24–25) Hall argues that the state court did not
address this ground in its order denying his Rule 3.850 motion but does not dispute
the Respondent’s assertion of either abandonment or procedural default.
To the extent that Hall did not present this ground to the state court as an
independent basis for relief in the body of his amended Rule 3.850 motion, the ground
is arguably procedurally defaulted as the State asserts. However, the State cites no
authority specifically holding that including a ground for relief as an attachment to an
otherwise properly filed amended Rule 3.850 motion for post-conviction relief results
in waiver or abandonment of the ground. Notwithstanding a procedural bar, Hall is
not entitled to relief because, even if considered on de novo review, the ground fails on
the merits.
Hall argued in his original Rule 3.850 motion that “[s]ince the death penalty
has been forbidden for Fla. Stat. 794.011(2) and that sexual battery is no longer a
capital felony by definition, the Defendant’s conviction for capital sexual battery
violates the Eighth and Fourteenth Amendments to the United States Constitution and
the continuation of the conviction constitutes a manifest injustice.” (Doc. 42-3, Ex. 11
at 403) Citing Buford v. State, 403 So. 2d 943 (Fla. 1981), 10 Hall argued that “[s]ince
the Florida Supreme Court declared the death penalty to be unconstitutional for capital
sexual battery in Buford . . ., Fla. Stat. 794.011(2) became non-existent and does not

Buford holds that a sentence of death for the crime of sexual assault violates the
Eighth Amendment’s prohibition against cruel and unusual punishment. 403 So. 2d at 951.
10

31

meet constitutional muster due to the provisions for the death penalty remaining in the
statute and must be re-enacted by the legislature by removing the death penalty
provisions.” (Id.)
An amended information charged Hall with capital sexual battery pursuant to
section 794.011, Florida Statutes. (Doc. 42-2, Ex. 1 at 26) However, despite its title,
“capital sexual battery” is not a capital offense because it is not subject to the death
penalty. See Buford, 403 So. 2d 943 (holding that a death sentence cannot be imposed
for sexual battery of child). See also Huffman v. State, 813 So. 2d 10, 12 (Fla. 2000)
(explaining “even if a felony is classified in the Florida Statutes as a capital offense, it
is not ‘capital’ under case law unless its subject to the death penalty”); State v. Hogan,
451 So. 2d 844, 845–46 (Fla. 1984) (“Sexual battery of a child, . . . while still defined
as a ‘capital’ crime by the legislature, is not capital in the sense that a defendant might
be put to death.”). The Supreme Court of the United States has rejected the argument
that the failure to amend the state statute which classifies sexual battery upon a person
less than twelve years of age as a capital offense can be interpreted as permitting the
application of the death penalty. In Kennedy v. Louisiana, 554 U.S. 407, 424–25 (2008),
the Court explained:
In 1981, however, the Supreme Court of Florida held the
death penalty for child sexual assault to be unconstitutional.
See Buford, supra. It acknowledged that Coker addressed only
the constitutionality of the death penalty for rape of an adult
woman, 403 So.2d, at 950, but held that “[t]he reasoning of
the justices in Coker . . . compels [the conclusion] that a
sentence of death is grossly disproportionate and excessive
punishment for the crime of sexual assault and is therefore
forbidden by the Eighth Amendment as cruel and unusual
32

punishment,” id., at 951. Respondent points out that the
state statute has not since been amended. Pursuant to Fla.
Stat. § 775.082(2) (2007), however, Florida state courts
have understood Buford to bind their sentencing discretion
in child rape cases. See, e.g., Gibson v. State, 721 So. 2d 363,
367, and n. 2 (Fla. App. 1998) (deeming it irrelevant that
“the Florida Legislature never changed the wording of the
sexual battery statute”); Cooper v. State, 453 So. 2d 67 (Fla.
App. 1984) (“After Buford, death was no longer a possible
penalty in Florida for sexual battery”); see also Fla. Stat.
§ 775.082(2) (“In the event the death penalty in a capital
felony is held to be unconstitutional by the Florida Supreme
Court . . . the court having jurisdiction over a person
previously sentenced to death for a capital felony . . . shall
sentence such person to life imprisonment[.]”).
Hall fails to establish either that section 794.011(2)(a), Florida Statutes,
proscribing capital sexual battery is unconstitutional or that his conviction under the
statute violates either his right to due process or the prohibition against cruel and
unusual punishment. Accordingly, even if reviewed on the merits, Ground Nine
warrants no relief.
Accordingly, Hall’s petition for the writ of habeas corpus (Doc. 1) is DENIED.
The Clerk is directed to enter a judgment against Hall and CLOSE this case.
DENIAL OF BOTH A
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
IT IS FURTHER ORDERED that Hall is not entitled to a certificate of
appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement
to appeal a district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a
district court must first issue a certificate of appealability (“COA”). Section 2253(c)(2)

33

limits the issuing of a COA “only if the applicant has made a substantial showing of
the denial of a constitutional right.” To merit a certificate of appealability, Hall must
show that reasonable jurists would find debatable both (1) the merits of the underlying
claims and (2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack
v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir
2001). Because he fails to show that reasonable jurists would debate either the merits
of the claims or the procedural issues, Hall is entitled to neither a certificate of
appealability nor leave to appeal in forma pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in forma
pauperis is DENIED. Hall must obtain permission from the circuit court to appeal in
forma pauperis.
DONE and ORDERED in Tampa, Florida this 19th day of September, 2022.

Copies furnished to:
All parties of record including unrepresented parties if any

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