Campana v. Secretary, Department of Corrections et al

Filing 41

OPINION AND ORDER. 1. Campana's petition for writ of habeas corpus 1 is DENIED. 2. The Clerk is directed to enter judgment against Campana and to close this case. 3. Campana is not entitled to a certificate of appealability (" COA"). A petitioner does not have absolute entitlement to appeal a district court's denial of his habeas petition. 28 U.S.C. § 2253(c)(1). A COA must first issue. Id. "A [COA] may issue... only if the applicant has mad e a substantial showing of the denial of a constitutional right." Id. at § 2253(c)(2). To make such a showing, Campana "must demonstrate that reasonable jurists would find the district court's assessment of the constituti onal claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were 'adequate to deserve encouragement to proceed further. '" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Campana has not made this showing. Because Campana is not entitled to a COA, he is not entitled to appeal in forma pauperis. Signed by Judge Charlene Edwards Honeywell on 6/29/2018. (BGS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
WANDEL CAMPANA,
Petitioner,
v.

Case No. 8:15-cv-895-T-36TGW

SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________________/
ORDER
Wandel Campana, a Florida prisoner, timely filed a pro se petition for writ of habeas corpus
under 28 U.S.C. § 2254 (Dkt. 1) challenging his Hillsborough County convictions. Respondent filed
a response (Dkt. 18) and Campana filed a reply (Dkt. 29). Upon review, the petition will be
DENIED.
Procedural Background
Campana was convicted after a jury trial of conspiracy to traffic in heroin and attempted
purchase of heroin. (Dkt. 20, Ex. 1, Vol. I, pp. 73-75). The state court sentenced him to 25 years in
prison. (Id., pp. 89-93). The state appellate court per curiam affirmed. (Dkt. 20, Ex. 5). The state
court denied Campana’s motion for postconviction relief filed under Florida Rule of Criminal
Procedure 3.850, and the state appellate court per curiam affirmed the denial of relief. (Dkt. 20, Exs.
24, 26, 32).
Facts;1 Campana’s Theory Of Defense

1

The factual summary is based on the trial transcript and appellate briefs.

Page 1 of 19

Detective Jose Feliciano was a “handler” for two confidential informants (“the first informant”
and “the second informant”). The informants arranged to sell heroin to Campana and his brother,
Gregorio Campana (“Gregorio”), in a reverse sting operation. On December 21, 2006, Detective
Feliciano told the informants to record conversations they had regarding the operation. On December
28, 2006, Campana asked friend, Benjamin Hall, to travel with him “to shoot some heroin,” and told
Hall that they “were going to meet a new connection that Gregorio had been talking with for about a
week.” (Dkt. 20, Ex. 1, Vol. IV, pp. 539, 548).
That day, police arrived near the agreed-upon meeting place for the operation, a Racetrac gas
station. Detective Feliciano and the first informant sat in a parked car across the street. As they
waited, the first informant conducted several recorded phone calls with Gregorio. The second
informant and Detective Ruth Stephenson, posing as the second informant’s girlfriend, waited inside
a Chevrolet Tahoe in the gas station parking lot. Gregorio arrived and parked next to the Tahoe’s
passenger side. Gregorio and the second informant exited their cars, shook hands, and spoke briefly
before Gregorio showed the second informant bundles of money inside his car. Campana and
Benjamin Hall then arrived in another car and parked on the passenger’s side of Gregorio’s car. The
second informant, Campana, and Gregorio talked, and Campana opened his car door so that the
informant could look inside. Conversations between the second informant, Campana, and Gregorio
were recorded on a device worn by the second informant. Undercover officers moved in and arrested
Campana, Gregorio, Hall, and the driver of Gregorio’s car, Frances Velez-Sosa. Police recovered
approximately $19,000 in cash from Gregorio’s car, and $10,000 in cash and two loaded handguns
from Campana’s car.
Campana and Gregorio were tried together. Gregorio did not testify. Campana testified that
Gregorio was interested in purchasing an SUV and had mentioned the Tahoe about a week earlier.
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Campana stated that Gregorio said he needed $10,000 to make the purchase. Campana testified that
he asked Hall to accompany him to look at the vehicle because Hall was knowledgeable about cars.
Campana denied owning a gun, and testified that he and Hall traveled that night in a friend’s car.
Campana further denied that he agreed to buy drugs or that he arrived at the Racetrac to buy drugs.
Standard Of Review
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this proceeding.
Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief can only be granted if
a petitioner is in custody “in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a). Section 2254(d) provides that federal habeas relief cannot be granted on a claim
adjudicated on the merits in state court unless the state court’s adjudication:
(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.
A decision is “contrary to” clearly established federal law “if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a
case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams
v. Taylor, 529 U.S. 362, 412-13 (2000). A decision is an “unreasonable application” of clearly
established federal law “if the state court identifies the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.”
Id. at 413.
The AEDPA was meant “to prevent federal habeas ‘retrials’ and to ensure that state-court
convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693
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(2002). Accordingly, “[t]he focus . . . is on whether the state court’s application of clearly established
federal law is objectively unreasonable, and . . . an unreasonable application is different from an
incorrect one.” Id. at 694. See also Harrington v. Richter, 562 U.S. 86, 103 (2011) (“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.”).
The state appellate court affirmed Campana’s convictions and the denial of postconviction
relief without discussion. These decisions warrant deference under § 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. 2002). 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.”). When a state appellate court issues a silent affirmance but
a lower court explains its reasons for denying the claim, “the federal court should ‘look through’ the
unexplained decision to the last related state-court decision that does provide a relevant rationale”
and “presume that the unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S.Ct.
1188, 1192 (2018).
Exhaustion Of State Court Remedies; Procedural Default
A federal habeas petitioner must exhaust his claims for relief by raising them in state court
before presenting them in his petition. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S.
838, 842 (1999) (“[T]he state prisoner must give the state courts an opportunity to act on his claims

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before he presents those claims to a federal court in a habeas petition.”).
The requirement of exhausting state remedies as a prerequisite to federal review is satisfied
if the petitioner “fairly presents” his claim in each appropriate state court and alerts that court to the
federal nature of the claim. Picard v. Connor, 404 U.S. 270, 275-76 (1971). “If the petitioner has
failed to exhaust state remedies that are no longer available, that failure is a procedural default which
will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage
of justice exception is established.” Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001).
Ineffective Assistance Of Counsel
Claims of ineffective assistance of counsel are analyzed under Strickland v. Washington, 466
U.S. 668 (1984). Campana must demonstrate that his counsel performed deficiently in that “counsel’s
representation fell below an objective standard of reasonableness.” Id. at 687-88. However,
“counsel is strongly presumed to have rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment.” Id. 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.” Id.
Campana must also show that he suffered prejudice by demonstrating “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at
694. Obtaining relief on a claim of ineffective assistance of counsel is difficult because federal
habeas review is “doubly” deferential to counsel’s performance and the state court’s decision.
Richter, 562 U.S. at 105.
Discussion

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Ground One
Campana contends that counsel was ineffective in failing to obtain disclosure of the
confidential informants’ identities. He claims that “had the jury discovered that both informants
retained relevant evidence/information collaborating Defendant’s theory of defense, there is a
reasonable probability of a different outcome.” (Dkt. 1-1, p. 1). Alternatively, he alleges, the trial
court would have granted his motion for judgment of acquittal. As a result of counsel’s failure to
uncover the informants’ identities, Campana claims, the State was allowed to present the informants’
statements through the hearsay testimony of Detectives Feliciano and Stephenson, in violation of his
constitutional rights to a fair trial, confrontation, and cross-examination.
When Campana raised this claim in his postconviction motion, the state court found it to be
facially insufficient because Campana did not “sufficiently allege prejudice resulting from counsel’s
asserted deficiency.” (Dkt. 20, Ex. 25, p. 5). Accordingly, the court allowed Campana an opportunity
to amend the defect in his claim. (Id.). When Campana did not file an amendment as directed,2 the
state court denied this claim:
Defendant alleges in ground one that counsel was ineffective for failing to seek
disclosure of two confidential informants who would have provided relevant
information to Defendant’s theory of defense. In support of his claim, Defendant
alleges that the State charged him with conspiracy to traffic in heroin and attempted
armed trafficking in illegal drugs based on a December 28, 2006, encounter with
undercover Detective Jose Feliciano, Frances Velez-Sosa, Benjamin Hall, and his codefendant, Defendant’s brother Gregorio Campana. Defendant further alleges that it
was discovered that Detective Feliciano used two confidential informants to engage
in the buy/sell transaction that took place. At trial, Defendant asserts that as part of his
theory of defense, defense counsel argued that law enforcement relied on two
confidential informants who were working off charges or had monetary incentive to
provide untruthful information for their benefit. Defendant alleges that he testified at

2

It appears that Campana prepared an amendment to this claim but never sent it to the state court. The
amendment’s certificate of service indicates that it was only sent to the Office of the State Attorney. (Dkt. 20, Ex.
28).

Page 6 of 19

trial that he was not going on a trip to buy heroin with his brother; rather, he was
driving to Tampa with his brother in order to loan him money to buy a car and had no
knowledge of an attempted drug transaction. Defendant contends that the State did not
present the testimony of the confidential informants, but brought forth the substance of
their testimony through Detectives Feliciano and Ruth Stephenson. Defendant contends
that counsel acted deficiently in failing to seek disclosure of the identities of the two
confidential informants because each could have testified that neither Defendant nor
his brother ever discussed a drug deal, but that they were at the location of the
transaction to purchase a car.
Defendant maintains that a motion seeking disclosure under Rovario v. United States,
353 U.S. 53 (1957) and its progeny would have been successful because counsel
would have been able to establish that the informant’s testimonies were relevant and
helpful to the defense and essential to a fair determination of guilt; thus overcoming the
State’s privilege of non-disclosure. Defendant avers that the record establishes that
the informants were an integral part in the drug deal, participating in, and facilitating,
the transaction. Because the identities of the confidential informants were not
disclosed, Defendant argues that the State was allowed to attempt to prove through
hearsay alone that conspiracy to traffic in heroin occurred. Finally, Defendant alleges
“that had [] counsel moved to disclose the identity of the confidential informants, and
said motion be[e]n granted, the two informants would have provided substance to the
defense theory that the Defendant left Sarasota to purchase a car, with his brother
because there was no attempt to purchase heroin.”
In the Court’s January 24, 2014 Order, the Court found ground one to be facially
insufficient as Defendant did not allege that a motion for disclosure would have been
granted, or how the outcome of the proceedings would have been different had counsel
sought disclosure of the identities of the two confidential informants. The Court
allowed Defendant over 60 days to amend his claim, if it could be corrected; however,
Defendant has failed to correct these pleading deficiencies by filing an amended
ground one. Therefore ground one is denied with prejudice.
(Dkt. 20, Ex. 26, pp. 4-5).
The state court’s denial of the claim as facially insufficient was a ruling on the merits. Pope
v. Sec’y, Dep’t of Corr., 680 F.3d 1271, 1286 (11th Cir. 2012); Borden v. Allen, 646 F.3d 785, 813
(11th Cir. 2011); Gaedtke v. Sec’y, Dep’t of Corr., 369 Fed. App’x 12, 14, 16 n. 2 (11th Cir. 2010).
In denying Campana’s claim, the state court determined that he did not establish a reasonable
probability that the motion to disclose the informants’ identities would have been granted or that the
outcome of the proceeding would have been different.
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The government has a limited privilege to withhold disclosure of its informants’ identities.
Rovario v. United States, 353 U.S. 53 (1957). The purpose of this privilege “is the furtherance and
protection of the public interest in effective law enforcement.” Id. at 59. But the privilege “must give
way” when an informant’s identity is “relevant and helpful to the defense of an accused, or is essential
to a fair determination of a cause.” Id. at 60-61. Determining whether disclosure is required involves
balancing “the particular circumstances of each case, taking into consideration the crime charged, the
possible defenses, the possible significance of the informer’s testimony, and other relevant factors.”
Id. at 62. In making this assessment, courts focus on “the extent of the informant’s participation in the
criminal activity, the directness of the relationship between the defendant’s asserted defense and the
probable testimony of the informant, and the government’s interest in nondisclosure.” United States
v. Tenorio-Angel, 756 F.2d 1505, 1509 (11th Cir. 1985).
The state court did not unreasonably deny Campana’s claim. While the informants were
involved in the offenses, Campana’s claim is too speculative and conclusory to show that their
potential testimony was significant and directly related to his theory of defense. “Mere conjecture or
supposition about the possible relevancy of the informant’s testimony is insufficient to warrant
disclosure. . . . The defendant must show that the informant’s testimony would significantly aid in
establishing an asserted defense.” Id. at 1511 (quoting United States v. Kerris, 748 F.2d 610, 614
(11th Cir. 1984)).
Campana’s statement is speculative in that he simply makes a conclusory statement, without
further support or explanation, that the informants would have corroborated his theory. The speculative
nature of this claim is also apparent in light of the State’s evidence of guilt, none of which suggests
that Gregorio told Campana that he wanted to purchase the Tahoe, or that Campana had any other
reason to believe the meeting was for a vehicle sale. None of the recordings between the informants
Page 8 of 19

and the defendants, including the conversation at the meeting site, refer to the sale of a vehicle. (Dkt.
20, Ex. 1, Supp. I, pp. 147-54, 167-73). The State also introduced a recorded conversation of
Campana, Gregorio, and Hall as they sat in a police car following their arrests. (Dkt. 20, Ex. 1, Vol.
III, pp. 356-61). At least one of them3 talked about having needles and a spoon, but tried to reason that
they should relax because they had not been found in possession of drugs. (Id., p. 158). The
conversation contained no references to a vehicle sale, and none of the participants protested that he
did not know the meeting was to involve drugs. (Id., pp. 155-66). Furthermore, Detective
Stephenson, who remained inside the Tahoe while the second informant got out and spoke to Campana
and Gregorio, testified that Gregorio never opened the Tahoe’s doors or hood. (Dkt. 20, Ex. 1, Vol.
IV, pp. 404, 515-16). Finally, Benjamin Hall testified that Campana sought Hall’s involvement in a
heroin transaction and promised to compensate him with heroin; that Hall was to inject heroin at the
meeting site to tell Campana and Gregorio how good it was; that after Campana met with the second
informant, he told Hall that Hall would be injecting heroin; and that Campana never mentioned buying
a vehicle. (Id., pp. 539-40, 543, 549, 560).
This type of speculation is insufficient to show that Campana was prejudiced by counsel’s
failure to seek disclosure of the informants’ identities. See Wood v. Bartholomew, 516 U.S. 1, 8
(1995) (a federal court may not grant habeas relief “on the basis of little more than speculation with
slight support.”); Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (vague, conclusory, or
unsupported allegations cannot support an ineffective assistance of counsel claim). Accordingly, as
Campana did not present information sufficient to prove that the informants’ identities were helpful
to the defense or essential to a fair determination of guilt, see Rovario, 353 U.S. at 60-61, he has not

3

Because the transcript of this recording lists the speakers as “unidentified males,” particular statements
cannot be attributed to any of the participants.

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established a reasonable probability that a motion to disclose their identities would have succeeded.
Campana does not show that the court unreasonably applied Strickland’s prejudice prong or
unreasonably determined the facts in denying his claim. He is not entitled to relief on Ground One.
Ground Two
Campana argues that trial counsel was ineffective in failing to object to the admission into
evidence of his and Gregorio’s cell phone records. He claims that the records were inadmissible
under state evidentiary law. After addressing relevant Florida law and the record, the state court
denied Campana’s claim:
The Court now finds, based on a review of the record, that counsel had no reason to
maintain his objection because the phone records were properly authenticated and
constituted admissible hearsay. See §§ 90.803(6)(a), 90.902(11), Fla. Stat. (2008).
The Court cannot find counsel ineffective for failing to maintain an objection when he
had no basis to do so. See Rogers v. State, 957 So. 2d 538, 548 (Fla. 2007).
Accordingly, because the record refutes his allegations, Defendant is not entitled to
relief and ground 2 is properly denied.
(Dkt. 20, Ex. 26, pp. 8-9).
The state court found that the phone records were properly admitted under Florida law.
Although Campana’s allegation of ineffective assistance raises a federal constitutional claim, this
Court must defer to the state court’s determination of the underlying state law question. See Herring
v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1355 (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)). As the state
court found, counsel is not ineffective for not raising a meritless claim. See Bolender v. Singletary,
16 F.3d 1547, 1573 (11th Cir. 1994) (“[I]t is axiomatic that the failure to raise nonmeritorious issues
does not constitute ineffective assistance.”). Accordingly, Campana fails to show that counsel
performed deficiently in not objecting to the records’ introduction. Campana does not establish that
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the state court’s decision resulted in an unreasonable application of Strickland or was based on an
unreasonable determination of fact. He is not entitled to relief on Ground Two.
Ground Three
Campana alleges that the trial court erred in denying his motion to sever his trial from
Gregorio’s trial. Initially, the claim is not cognizable because it fails to allege a federal constitutional
violation. See 28 U.S.C. § 2254(a). Even liberally construing Ground Three as presenting a federal
constitutional challenge, however, Campana cannot obtain relief. Campana alleges that the court erred
in denying a severance because he and Gregorio had mutually antagonistic defenses and because he
was entitled to call Gregorio as a witness to elicit exculpatory testimony from him. He alleges that,
had a severance been granted, he would not have been found guilty because the evidence against him
was weak.
Campana’s claim is unexhausted because he did not raise it on direct appeal. He instead
argued on appeal that the court should have granted his motion to sever because 1) he was prevented
from cross-examining Gregorio about his recorded statements in violation of his right to confrontation,
and 2) a joint trial “potential[ly]” violated Bruton v. United States, 391 U.S. 123 (1968). (Dkt. 20,
Ex. 2, pp. 25-29). State procedural rules do not provide for a second direct appeal. See Fla. R. App.
P. 9.140(b)(3). Accordingly, Campana’s claim is procedurally defaulted. See Smith, 256 F.3d at
1138.
Campana appears to argue that he has established cause because his appellate counsel was
ineffective in failing to raise the claim on appeal. Ineffective assistance of counsel can constitute
cause to overcome a procedural default. Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000). First,
however, the petitioner must raise the allegation of ineffective assistance in state court. See id.
(“[I]neffective assistance adequate to establish cause for the procedural default of some other
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constitutional claim is itself an independent constitutional claim . . . [that must] be first raised in state
court.”) (emphasis in original). Campana did not present this ineffective assistance claim to the state
court. Although he filed a state habeas petition alleging ineffective assistance of appellate counsel,
he did not argue that appellate counsel was ineffective in his presentation of the severance claim.
(Dkt. 20, Ex. 14). As Campana cannot return to state court to file an untimely challenge to his
appellate counsel’s performance, see Fla. R. App. P. 9.141(d)(5), this claim is itself procedurally
defaulted. Accordingly, Campana fails to establish the cause and prejudice exception. See
Carpenter, 529 U.S. at 451-52; see also Hill v. Jones, 81 F.3d 1015, 1030 (11th Cir. 1996) (“[T]he
Supreme Court’s jurisprudence on procedural defaults dictate[s] that procedurally-defaulted claims
of ineffective assistance cannot serve as cause to excuse a default of a second claim.”) (emphasis in
original). Campana does not allege that the fundamental miscarriage of justice exception applies to
overcome the default. Therefore, the claim raised in Campana’s federal habeas petition is barred from
review.
In his reply, Campana raises the claim that he brought on direct appeal. Campana is prohibited
from bringing a new claim in his reply. See Herring, 397 F.3d at 1342 (“As we repeatedly have
admonished, arguments raised for the first time in a reply brief are not properly before a reviewing
court.”) (internal quotation marks and citation omitted); Timson v. Sampson, 518 F.3d 870, 874 (11th
Cir. 2008) (“We do not address arguments raised for the first time in a pro se litigant’s reply brief.
Lovett v. Ray, 327 F.3d 1181, 1183 (11th Cir. 2003). Timson, thus, has abandoned this issue.”).
Even if the reply was read as a request to amend the petition, and even assuming that the claim
in the reply relates back to the claim brought in the petition,4 Campana has not shown entitlement to

4

See Mayle v. Felix, 545 U.S. 644, 664 (2005).

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relief. In Bruton, a co-defendant’s confession implicated Bruton. Admission of the confession at a
joint trial during which the co-defendant did not testify violated Bruton’s rights under the
Confrontation Clause. Bruton, 391 U.S. at 126. In support of his Bruton claim, Campana in his
appeal identified two comments by Gregorio. In a call between the first informant and Gregorio on
the date of the arranged purchase, Gregorio stated, “I’m going to pick up my brother to [unintelligible]
and the guy that’s coming to test the stuff.” (Dkt. Ex. 1, Supp. I, p. 154). Then, in a recorded
conversation between the second informant and Gregorio at the gas station, the informant asked
Gregorio where his brother was. Gregorio answered, “he is there [unintelligible] look at him there,
I even have his tester and all.” (Id., p. 170).
Campana cannot show entitlement to relief. The Confrontation Clause of the Sixth Amendment
provides that in a criminal prosecution, “the accused shall enjoy the right . . . to be confronted by the
witnesses against him.” U.S. Const. Amend. VI. After Bruton, the Supreme Court decided Crawford
v. Washington, holding that the Confrontation Clause permits “[t]estimonial statements of witnesses
absent from trial . . . only where the declarant is unavailable, and only where the defendant has had
a prior opportunity to cross-examine.” 541 U.S. 36, 59 (2004). The Confrontation Clause does not
apply to non-testimonial out-of-court statements. See Whorton v. Bockting, 549 U.S. 406, 420 (2007)
(“Under Crawford, . . . the Confrontation Clause has no application” to “an out-of-court
nontestimonial statement not subject to prior cross-examination.”).
Testimonial statements include those “made under circumstances which would lead an
objective witness reasonably to believe that the statement would be available for use at a later trial.”
Crawford, 541 U.S. at 52. See also Davis v. Washington, 547 U.S. 813, 822 (2006) (statements are
testimonial when “circumstances objectively indicate that . . . the primary purpose of the interrogation
is to establish or prove past events potentially relevant to later criminal prosecution.”).
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Campana does not establish that Gregorio’s statements to the informants were testimonial, as
there is simply no indication that Gregorio made them for use at a future trial. See, e.g., United States
v. Makarenkov, 401 Fed. App’x 442, 444 (11th Cir. 2010) (“[T]he statements made by [a coconspirator] to the confidential informant were not testimonial because the statements were not made
under circumstances in which he would expect his statements to be used in court–he believed he was
speaking to a trusted accomplice in crime. Therefore, the admission of [the co-conspirator’s]
statements did not violate Makarenkov’s rights under the Confrontation Clause.”); United States v.
Underwood, 446 F.3d 1340, 1347 (11th Cir. 2006) (recorded statements of co-conspirator to
informant made “in furtherance of the criminal conspiracy . . . clearly were not made under
circumstances which would have led him reasonably to believe that his statement would be available
for use at a later trial” because had the declarant known he was talking to an informant “it is clear that
he never would have spoken to [the informant] in the first place.”).
Because Gregorio’s statements were non-testimonial, no Confrontation Clause violation
occurred, even if Bruton is implicated. The Eleventh Circuit has stated:
We have not yet addressed, in a published case, whether an out-of-court statement
must be testimonial for Bruton to apply. However, we conclude that, as Bruton was
premised on the Confrontation Clause, its protections only apply to testimonial
statements. Every other Circuit to have considered the issues has concluded the same.
See, e.g., United States v. Berrios, 676 F.3d 118, 128–29 (3d Cir.2012); United
States v. Castro–Davis, 612 F.3d 53, 65–66 (1st Cir.2010); United States v. Smalls,
605 F.3d 765, 768 n. 2 (10th Cir.2010); United States v. Johnson, 581 F.3d 320,
325–26 (6th Cir.2009); United States v. Avila Vargas, 570 F.3d 1004, 1008–09 (8th
Cir.2009). Accordingly, here, there was no Bruton error.
United States v. Rodriguez, 591 Fed. App’x 897, 902 (11th Cir. 2015).
Campana’s claim fails, as he has not shown that Bruton applied to Gregorio’s non-testimonial

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statements.5 And to the extent Campana makes a general Sixth Amendment Confrontation Clause claim
concerning Gregorio’s other recorded statements to the informants, his federal claim is unexhausted.
On appeal, Campana only argued a violation of his right to confrontation without specifically alleging
a federal constitutional violation. (Dkt. 20, Ex. 2, p. 26). See Zeigler v. Crosby, 345 F.3d 1300, 1307
(11th Cir. 2003) (“To present a federal constitutional claim properly in state court, ‘the petitioner must
make the state court aware that the claims asserted present federal constitutional issues.’”) (quoting
Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998)). His federal claim is now procedurally
defaulted, and he has not shown the applicability of an exception to excuse the default.
Notwithstanding the default, Campana does not show a Confrontation Clause violation because, as
addressed, Gregorio’s statements were non-testimonial. Campana has not demonstrated that the state
appellate court’s denial of his claim involved a decision that was contrary to or an unreasonable
application of clearly established federal law, or was based on an unreasonable factual determination.
He is not entitled to relief on Ground Three.
Ground Four
Campana argues that the trial court erred in overruling counsel’s objection to the admission
of recorded conversations between Gregorio and the confidential informants that were introduced at
trial. The State introduced three conversations between Gregorio and the first informant (tracks two,
three, and four, which were identified as State’s Exhibits 8-A, 8-B, and 8-C) during the direct
examination of Detective Feliciano. These were the calls made while the first informant and
5

Even if Bruton applied and the introduction of Gregorio’s statements was error, Campana does not show that
the introduction of these isolated remarks had a substantial and injurious effect on the verdict. See Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993) (a constitutional error will provide habeas relief only when a petitioner shows
actual prejudice in that “the error ‘had substantial and injurious effect or influence in determining the jury’s verdict.’”
(quoting Kotteakos v. United States, 328 U.S. 750, 766 (1946))). See also Schneble v. Florida, 405 U.S. 427, 432
(1972) (A new trial is required following a Bruton violation if “there is a reasonable possibility that the improperly
admitted evidence contributed to the conviction.”).

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Detective Feliciano waited near the arranged meeting site. The State also introduced one conversation
between Gregorio, Campana, and the second informant (track five, which was identified as State’s
Exhibit 8-E) during the direct examination of Detective Stephenson. This recording was obtained
from a recording device worn by the second informant.
Campana alleges that the trial court erred because the conversations did not qualify under the
co-conspirator hearsay exception; because the State did not lay a proper foundation for the admission
of the conversations; and because the State failed to satisfy the requirements of Chapter 934, Fla. Stat.,
concerning surveillance and interception of communications. However, these allegations involve the
proper application of state evidentiary law. This question of state law is not cognizable on federal
habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a
federal habeas court to re-examine state-court determinations on state-law questions.”); Wainwright
v. Goode, 464 U.S. 78, 83 (1983) (“It is axiomatic that federal courts may intervene in the state
judicial process only to correct wrongs of a constitutional dimension.”).
Campana also alleges that the trial court erred because introduction of Gregorio’s and the
informants’ statements, through audio recordings and transcripts, “violated his right to confrontation,
and thus, his right to a fair trial, contrary to the 6th Amendment of the U.S. Constitution.” (Dkt. 1-1,
p. 15).6 Counsel objected on Confrontation Clause grounds when the State moved to introduce the
conversations. (Dkt. 20, Ex. 1, Vol. III, pp. 256-58, 263-64, Vol. IV, pp. 417-18). The state appellate

6

Campana also states that the conversations did not establish a conspiracy, and that “the State’s repeated
reference that these recordings did establish a conspiracy was highly prejudicial.” (Dkt. 1-1, p. 15). To the extent he
intends to bring independent claims of prosecutorial misconduct and insufficiency of the evidence, his allegations are
not cognizable because he alleges no federal constitutional violation. See Branan v. Booth, 861 F.2d 1507, 1508
(11th Cir. 1988) (“[A] habeas petition grounded on issues of state law provides no basis for habeas relief.”). Further,
even if his claims could be read to allege federal constitutional violations, the claims are unexhausted due to
Campana’s failure to raise them on direct appeal, and are procedurally defaulted. (See Dkt. 20, Ex. 2). Campana does
not show that an exception applies to excuse the default. Consequently, the claims are barred from review.

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court denied Campana’s claim through its per curiam affirmance of the convictions and sentences.
Campana fails to show entitlement to relief. As addressed in Ground Three, supra,
Gregorio’s statements to the informants were not testimonial and thus were not barred by the
Confrontation Clause. Further, because Campana does not demonstrate that the informant’s taped
statements were made to establish or prove past events for purposes of a later trial, he cannot show
that they were testimonial. See Davis, 547 U.S. at 822; Crawford, 541 U.S. at 52. But, even assuming
the informants’ statements were testimonial, the Sixth Amendment right to confrontation “does not bar
the use of testimonial statements for purposes other than establishing the truth of the matter asserted.”
Crawford, 541 U.S. at 59 n.9.
The informants’ statements were introduced to give context to Campana’s and Gregorio’s
statements. In the conversations found on tracks two, three, and four, Gregorio and the first informant
discussed a time and place to meet and Gregorio’s bringing Campana and “a guy . . . to test the stuff”
to the meeting. (Dkt. 20, Ex. 1, Supp. I, pp. 147-54). Similarly, on track five, Campana and Gregorio
talked to the second informant at the gas station about money to be exchanged and the use of a tester.
(Id., pp. 167-72). Because the informants’ statements placed into context Campana’s and Gregorio’s
statements that went to establishing the conspiracy to traffic in heroin and attempted purchase of
heroin, the Confrontation Clause was not violated. See United States v. Augustin, 661 F.3d 1105,
1128 (11th Cir. 2011) (“This Court has explained that the Confrontation Clause is not violated by a
non-testifying informant’s recorded statements when offered only to place the defendant’s statements
in context.”) (citations omitted); United States v. Boykins, 380 Fed. App’x 930, 933 (11th Cir. 2010)
(“[A] confidential informant’s recorded statements offered . . . to give context to a defendant’s
statements are not hearsay because they are not offered for the truth of the matter asserted.”); United
States v. Toepfer, 317 Fed. App’x 857, 860 (11th Cir. 2008) (“[T]he recorded statements of [a
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confidential informant] were not used to prove the truth of the matters asserted in those statements.
Rather, the statements were offered merely to provide context to [the defendant’s] admissions about
his activities, knowledge, and intent, and thus, did not run afoul of the Confrontation Clause.”).
Campana does not establish that the state appellate court’s decision was contrary to or an
unreasonable application of clearly established federal law, or was based on an unreasonable
determination of fact. He is not entitled to relief on Ground Four.
Any of Petitioner’s allegations not specifically addressed in this Order have been deemed to
be without merit.
It is therefore ORDERED AND ADJUDGED:
1. Campana’s petition for writ of habeas corpus (Dkt. 1) is DENIED.
2. The Clerk is directed to enter judgment against Campana and to close this case.
3. Campana is not entitled to a certificate of appealability (“COA”). A petitioner does not
have absolute entitlement to appeal a district court’s denial of his habeas petition. 28 U.S.C.
§ 2253(c)(1). A COA must first issue. Id. “A [COA] may issue ... only if the applicant has made a
substantial showing of the denial of a constitutional right.” Id. at § 2253(c)(2). To make such a
showing, Campana “must demonstrate that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004)
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented were ‘adequate
to deserve encouragement to proceed further.’” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Campana has not made this showing.
Because Campana is not entitled to a COA, he is not entitled to appeal in forma pauperis.
ORDERED in Tampa, Florida, on June 29, 2018.

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Copies to:
Wandel Campana
Counsel of Record

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