Jimenez v. Secretary, Department of Corrections et al (Pinellas County)

Filing 57

ORDER denying Jimenez's 6 amended petition for a writ of habeas corpus. A certificate of appealability and leave to appeal in forma pauperis are DENIED. The Clerk is DIRECTED to enter a judgment against Jimenez and CLOSE this case. Signed by Judge Mary S. Scriven on 11/19/2021. (JT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DAVID JIMENEZ,
Petitioner,
v.

Case No. 8:19-cv-684-MSS-AEP

SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
____________________________________/
ORDER
Jimenez petitions for a writ of habeas corpus under 28 U.S.C. § 2254 and challenges
his state court convictions for scheme to defraud, criminal use of personal identification
information, and providing a false name to law enforcement, for which he is serving 15 years
of prison. (Docs. 6 at 1 and 13-3 at 612–17) After reviewing the amended petition (Docs. 6
and 7), the response and appendix (Doc. 13), and the reply (Docs. 14 and 15), the Court
DENIES the petition.
PROCEDURAL HISTORY
A jury found Jimenez guilty of the crimes, and the trial court sentenced Jimenez to 15
years of prison for one count of criminal use of personal identification, a concurrent 5 years
of prison for the second count, 5 years of probation for scheme to defraud, and time served
for providing a false name to law enforcement. (Doc. 13-3 at 607–10, 612–19) The state
appellate court affirmed the convictions and sentences. (Doc. 13-3 at 682) The post-conviction
court denied Jimenez relief (Doc. 13-4 at 258–78), and the state appellate court affirmed.
(Doc. 13-4 at 604) Jimenez’s federal petition follows.

1

FACTS
Sandra Rhodes met Jimenez on a dating website. When Rhodes told Jimenez that she
owed money to the Internal Revenue Service, Jimenez agreed to help her. Rhodes gave
Jimenez a tax form with her personal identification information. Jimenez gave Rhodes credit
cards, explained that the accounts were in his name and he was responsible for expenses on
the cards, and told her to use the cards for food and gasoline. Jimenez insisted that Rhodes
upgrade her car. Rhodes agreed to purchase a Mercedes Benz in her name, after Jimenez
promised to pay the car loan. Rhodes never drove the car, and Jimenez later asked Rhodes to
sign some documents that Rhodes believed transferred title of the car to Jimenez. Also,
Rhodes agreed to open a checking account at Bank of America for Jimenez. When Rhodes
went to the bank, she discovered that she owed the bank $14,000.00 on a credit card. Rhodes
had not applied for the Bank of America credit card and never knew that the card existed.
Someone had used the card for purchases in Puerto Rico, and Rhodes had never traveled to
Puerto Rico. Rhodes also learned that she was the primary cardholder for the credit cards that
Jimenez gave her. Rhodes learned about unauthorized purchases on those cards and on other
cards in her name at restaurants, bars, hotels, airlines, and Disney World. Also, Rhodes
learned that someone had applied for other credit cards in her name, even after her
relationship with Jimenez ended, but the credit card companies suspected fraud and denied
the applications.
The car lender for the Mercedes Benz notified Rhodes that Jimenez stopped making
payment on the car loan, and Rhodes contacted police. Jimenez surrendered to Rhodes the
Mercedes Benz, which appeared damaged, and Rhodes returned the car to the lender. The
credit card companies discharged the unauthorized purchases on the credit cards. Rhodes

2

filed for bankruptcy to discharge a $15,000.00 debt for the Mercedes Benz. When Jimenez
surrendered the car, a sheriff’s deputy spoke with Jimenez. Jimenez first told the deputy that
his name was “Michael David Jimenez,” but then told the deputy his name was “Michael
Paul Jimenez.” Both an expired Florida driver’s license and a valid Texas driver’s license
showed Jimenez’s name as “Michael Paul Jimenez.” A detective learned that “Michael
Jimenez” was Jimenez’s brother who lived in Texas.
During his relationship with Rhodes, Jimenez met Elizabeth Gonzalez in Tampa at a
coffee shop.1 Jimenez never mentioned his relationship with Rhodes. Jimenez used credit
cards to treat Gonzalez to expensive meals at nice restaurants, purchase gifts for her and her
family, purchase gifts for her children at Disney World, and pay for plane tickets and hotels
for Gonzalez. Jimenez asked Gonzalez to marry him, and both married at a “high-end” resort
in Puerto Rico where Gonzalez lived. Jimenez paid for the wedding with a credit card.
Jimenez asked Gonzalez to move to Tampa to live with him and asked for her personal
identification information to add her and her daughter to his health insurance. Jimenez gave
Gonzalez a credit card in her name but told her that he opened the account in his name, was
responsible for the charges, and authorized her to use the account. After Gonzalez moved to
Tampa, a sheriff’s deputy informed her that police were investigating Jimenez for fraud.
Gonzalez discovered that she incurred $50,000.00 to $60,000.00 in debt on three credit cards.
Gonzalez had not applied for the credit cards and had not authorized the purchases. Gonzalez
also incurred $12,000.00 in debt in a savings account that belonged to her. Jimenez had asked

1

The trial court admitted Gonzalez’s testimony as similar fact evidence. (Doc. 13-2 at

168–70)
3

Gonzalez for the card for that account because he claimed that he had lost his cards. Gonzalez
had not authorized purchases on that account either.
Rhodes provided the detective with her credit report and identified Jimenez as the
person whom she believed responsible for the debts, and the detective subpoenaed documents
from the credit card companies listed in the report. Records in the accounts in Rhodes’s name
showed Rhodes as the primary account holder and Jimenez as an authorized user. Two
accounts listed Jimenez’s e-mail address as a primary contact. Records for an account in
Rhodes’s name showed the purchase of airplane ticket for Gonzalez to Puerto Rico. Also,
records for an account in Gonzalez’s name showed payments for the wedding.
STANDARDS OF REVIEW
AEDPA
Because Jimenez filed his federal petition after the enactment of the Antiterrorism
and Effective Death Penalty Act, AEDPA governs his claims. Lindh v. Murphy, 521 U.S.
320, 327 (1997). AEDPA amended 28 U.S.C. § 2254(d) to require:
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.

4

A decision is “contrary to” clearly established federal law “if the state court arrives
at a conclusion opposite to that reached by [the U.S. Supreme Court] on a question of law
or if the state court decides a case differently than [the U.S. Supreme Court] has on a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000). A
decision involves an unreasonable application of clearly established federal law “if the state
court identifies the correct governing legal principle from [the U.S. Supreme Court’s]
decisions but unreasonably applies that principle to the facts of the prisoner’s case.”
Williams, 529 U.S. at 413. Clearly established federal law refers to the holding of an opinion
by the U.S. Supreme Court at the time of the relevant state court decision. Williams, 529
U.S. at 412.
“[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.” Bell v. Cone, 535 U.S. 685, 694
(2002). A federal petitioner must show that the state court’s ruling was “so lacking in
justification that there was an error well understood and comprehended in existing law
beyond any possibility of fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103
(2011).
Ineffective Assistance of Counsel
Jimenez asserts ineffective assistance of counsel — a difficult claim to sustain.
Strickland v. Washington, 466 U.S. 668, 687 (1984) explains:
First, 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

5

errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.
“There is no reason for a court . . . to address both components of the inquiry if the defendant
makes an insufficient showing on one.” Strickland, 466 U.S. at 697. “[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.” Strickland, 466 U.S. at 690.
“An 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.”
Strickland, 466 U.S. at 691. To demonstrate prejudice, the defendant must show “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 691. A reasonable probability
is a “probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S.
at 694.
Strickland cautions that “strategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at
690–91. A defendant cannot meet his burden by showing that the avenue chosen by counsel
was unsuccessful. White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992).
Because the standards under Strickland and AEDPA are both highly deferential,
“when the two apply in tandem, review is ‘doubly’ so.” Richter, 562 U.S. at 105. “Given the
double deference due, it is 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

6

proceeding.’” Nance v. Warden, Ga. Diag. Prison, 922 F.3d 1298, 1303 (11th Cir. 2019)
(citation omitted).
The state appellate court affirmed in a decision without a written opinion the
post-conviction court’s order denying Jimenez relief. (Doc. 13-4 at 604) A federal court
“‘look[s] through’ the unexplained decision to the last related state-court decision that does
provide a relevant rationale [and] presume[s] that the unexplained decision adopted the
same reasoning.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The post-conviction court
provided reasons for denying Jimenez’s claims in a written order. (Doc. 13-4 at 258–78)
Exhaustion and Procedural Default
A petitioner must exhaust the remedies available in state court before
a federal court can grant relief on habeas. 28 U.S.C. § 2254(b)(1)(A). The petitioner must
(1) alert the state court to the federal nature of his claim and (2) give the state court one full
opportunity to resolve the federal claim by invoking one complete round of the state’s
established appellate review process. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Picard
v. Connor, 404 U.S. 270, 278 (1971). The state court must have the first opportunity to review
and correct any alleged violation of a federal right. Baldwin v. Reese, 541 U.S. 27, 29 (2004).
A federal court may stay — or dismiss without prejudice — a habeas case to allow a
petitioner to return to state court to exhaust a claim. Rhines v. Weber, 544 U.S. 269 (2005);
Rose v. Lundy, 455 U.S. 509 (1982). If the state court would deny the claim on a state
procedural ground, the federal court instead denies the claim as procedurally barred.
Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998) (citing Coleman v. Thompson, 501
U.S. 722, 735 n.1 (1991)).

7

To excuse a procedural default on federal habeas, a petitioner must demonstrate
either (1) cause for the default and actual prejudice from the alleged violation of federal law
or (2) a miscarriage of justice. Maples v. Thomas, 565 U.S. 266, 280 (2012); House v. Bell, 547
U.S. 518, 536–37 (2006).
ANALYSIS
Ground One
Jimenez asserts that the admission of records at trial violated the state rules of
evidence (Doc. 6 at 5), and trial counsel was ineffective for stipulating to the admission of
the records. (Doc. 7 at 3) The Respondent asserts that the ground is unexhausted and
procedurally barred. (Doc. 13 at 5) Jimenez contends that he raised the claim in his motion
for post-conviction relief. (Doc. 6 at 6) Jimenez raised the claim in his post-conviction
motion (Doc. 13-4 at 181–85) and his brief on post-conviction appeal. (Doc. 13-4 at 520)
The Respondent overlooked the ineffective assistance of counsel component of the claim in
Ground One on page 2 of Jimenez’s memorandum supporting his Section 2254 petition and
misconstrued the ground as raising a due process claim. (Doc. 7 at 3) Dye v. Hofbauer, 546
U.S. 1, 4 (2005). Consequently, Jimenez adequately exhausted the claim. Boerckel, 526 U.S.
at 845; Picard, 404 U.S. at 278.
The post-conviction court denied the claim as follows (Doc. 13-4 at 267–72) (state
court record citations omitted):
Defendant’s claim alleges that his counsel was ineffective for
stipulating to waive the production of an authenticating witness
and for failing to challenge “documentary evidence used to
convict” him. He contends that the documentary evidence he
identifies throughout his claim, which appears to consist of all
bank records, credit card applications, America Online account
information, cell phone records, and a police-created visual aid
submitted at trial, were not properly authenticated, consisted of

8

unduly prejudicial hearsay, did not meet the standards of
admissibility, and contained “unduly prejudicial surplusage”
that related to the ultimate issues of the trial and determined the
outcome. He argues that a witness was required to identify
documents that are not self-authenticating and “if the basis for
authenticity is that the documents are self-authenticating the
requirements of admissibility must be exactly adhered to.” He
alleges that one exhibit admitted as evidence as State’s Exhibit
14 was created by an investigating officer and used in his
prosecution rather than in the normal course of business, and
Detective Bingham’s testimony listed in pages 8 through 9 of
his third amended motion regarding State’s Exhibit 14 “was
prejudicial surplusage in light of the inauthentic evidence.” He
asserts that counsel failed to review these documents in advance
of trial and therefore “unqualified statements of wrongdoing”
were placed before the jury without the benefit of crossexamination. Defendant asserts that if counsel had reviewed
these documents and objected to the admissibility of the
documentary evidence he describes, the documents would not
have been admissible and the outcome of the trial would have
been different. The State was directed to respond to this claim.
In its response, the State argues that counsel’s failure to
challenge documentary evidence presented by the State at the
Williams Rule hearing and at trial was reasonable, because the
evidence was admissible pursuant to Section 90.902(11),
Florida Statutes, as self-authenticating, and fell under the
“Record of Regularly Conducted Business Activity” exception
in Section 90.803(6), Florida Statutes. The State asserts that
prior to the Williams Rule hearing, the State introduced Exhibits
1 through 5 as evidence, which consisted of reports, records,
and data compilations made at or near the time by, or from
information transmitted by, a person with knowledge, kept in
the course of regular practice of that business activity to make
such reports, records, or data compilation, as shown by a
certification or declaration that complies with paragraph (c) and
Section 90.902(11), Florida Statutes. The State placed on the
record that it had previously filed a notice of intent to offer
records of regularly conducted business activity by certification
and declaration in accordance with Section 90.803(6)(c), and
that each exhibit was introduced with an affidavit that the
exhibit was made at or near the time the offenses occurred and
was kept in the course of regularly conducted activity in
accordance with Section 90.902(11), Florida Statutes.

9

The State further argues that State’s Exhibit 14, along with all
other records and reports it presented, were presented with a
certificate of domestic records of regularly conducted business,
and fell within the hearsay exception described above. The
State alleges that the requirements of self-authenticating
documents were exactly adhered to, and therefore a records
custodian was not required to testify and introduce the exhibits
at trial. Thus, the State argues that counsel’s failure to object
was reasonable. The State also notes that the documents
presented by the State were not “highly prejudicial surplusage”
as Defendant claims, as each document pertained to a material
issue at trial and proved Defendant’s scheme to defraud and his
unauthorized use of Ms. Rhodes’s personal information.
Finally, the State argues that even if counsel reviewed all of the
documents and objected to their admission, there is no
reasonable probability that the objection would have been
sustained. The State asserts that it filed a notice of intent in
compliance with Section 90.803(6), Florida Statutes, three
years prior to trial, each exhibit was accompanied by a
certificate of authenticity from the records custodians, and all
exhibits were admissible under Section 90.902(11), Florida
Statutes. The State therefore argues that there is no reasonable
probability that the Williams Rule hearing or the trial would
have been different if counsel had objected.
The Court is persuaded by the State’s response, and finds that
counsel was not deficient for failing to secure a document
witness or failing to object or challenge documentary evidence,
because the documentary evidence Defendant challenges was
self-authenticating and admissible pursuant to the business
records exception to hearsay. See §§ 90.803(6) [and] 90.902(11),
Fla. Stat. A record of regularly conducted business activity is
a[:]
memorandum,
report,
record,
or
data
compilation, in any form, of acts, events,
conditions, opinion, or diagnosis, made at or near
the time by, or from information transmitted by, a
person with knowledge, if kept in the course of a
regularly conducted business activity and if it was
the regular practice of that business activity to
make such memorandum, report, record, or data
compilation, all as shown by the testimony of the
custodian or other qualified witness, or as shown

10

by a certification or declaration that complies with
paragraph (c) and section 90.902(11) . . . .
§ 90.803(6)(a), Fla. Stat. “[T]o secure the admissibility of
evidence under the business records exception, the proponent of
the evidence must show that: (1) the record was made at or near
the time of the event; (2) the record was made by, or from
information transmitted by, a person with knowledge; (3) the
record was kept in the ordinary course of a regularly conducted
business activity; and (4) it was a regular practice of that business
to make such a record.” Morrill v. State, 184 So. 3d 541, 545 (Fla.
1st DCA 2015) (citing Yisrael v. State, 993 So. 2d 952, 956–57
(Fla. 2008)). “The proponent of the evidence must present this
information in one of three formats: (1) testimony of a records
custodian, (2) stipulation by the parties, or (3) a certification or
declaration that complies with sections 90.803(6)(c) and
90.902(11).” Id. A party offering evidence of records of regularly
conducted business activity by means of a certification or
declaration “shall serve reasonable written notice of that
intention upon every other party and shall make the evidence
available for inspection sufficiently in advance of its offer in
evidence to provide to any other party a fair opportunity to
challenge the admissibility of the evidence.” § 90.803(6)(c), Fla.
Stat.
Here, the State offered evidence of the business records by means
of a certification or declaration that complied with Sections
90.803(6)(c) and 90.902(11), Florida Statutes. On April 28, 2010,
three years prior to the Williams Rule hearing and trial, the State
filed its Notice of Intent to Offer Records of Regularly
Conducted Business Activity by Certification or Declaration in
accordance with Section 90.803(6)(c), Florida Statutes. That
same day, the State filed an “Acknowledgment of Additional
Tangible Evidence.” In the acknowledgment, each piece of
record evidence from a bank or financial institution indicates that
it includes a Certificate of Business Records.
The State introduced five exhibits at the Williams Rule hearing,
which consisted of copies of various bank and credit card
records. Each exhibit was accompanied by an affidavit from the
records custodian certifying that the record was made at or near
the time of the occurrence of the offenses and was kept and made
in the course of regularly conducted activity, in accordance with
Section 90.902(11), Florida Statutes. With regard to the exhibits,
prior to the start of the Williams Rule hearing, the State placed
on the record that:

11

[Prosecutor:]

[B]ack on April 26th of 2010 the
State filed a notice of intent to offer
records of regularly conducted
business activity by certification
and declaration. Included in that is
State’s Exhibit 1, State’s Exhibit 2,
and State’s Exhibit 3. Not included
are State’s Exhibit 4 and State’s
Exhibit 5. State’s Exhibit 4 and
State’s Exhibit 5[,] I’m moving at
this point into evidence under
Florida Statute 90.902(11), selfauthenticating. These documents
have a business record affidavit
indicating that they are kept in the
normal course of business and
made out or about the time that —
it’s got all the factors. It was made
at or about the time of the offense
— or the record was made. It was
kept in the normal course of
business and it’s a practice to keep
these, and it’s made by somebody
with knowledge. It was signed and
notarized in the states where these
companies are located. So I would
submit these as self-authenticating;
State’s 1, 2, 3, 4, and 5. I would
submit them [as] self-authenticating
with the affidavits. They all have
the affidavits.

Therefore, the record reflects that the documentary evidence met
the standards of admissibility and that the procedure for
admitting self-authenticating business records pursuant to the
business record exception was exactly adhered to at the Williams
Rule hearing; therefore, a document witness was not necessary
and counsel had no basis to object to the admission of the
evidence at the Williams Rule hearing. Counsel cannot be
deemed ineffective for failing to raise a meritless objection. See
Schoenwetter v. State, 46 So. 3d 535, 546 (Fla. 2010).
Additionally, the State introduced 20 exhibits at trial, which
consisted largely of copies of various bank and credit card
records. Again, each exhibit entered as evidence [of] a business

12

record [and] was accompanied by an affidavit from the records
custodian certifying that the record was made at or near the time
of the occurrence of the offenses and was kept and made in the
course of regularly conducted activity, in accordance with
Section 90.902(11), Florida Statutes. With regard to the exhibits
at trial, during its opening statement, counsel for the State stated
that “what you’re also going to see [are] bank records. You’re
going to see — and nobody from the banks [is] going to testify
about [them] because they provided affidavits which you’re also
going to get as well saying the records were authentic and that
they’re kept in the normal course of business. They’re business
records basically, and that’s why they’re reliable.” Further, the
State affirmed that each exhibit qualified as a business record
prior to admitting it as evidence during the trial. Therefore, the
record reflects that the documentary evidence met the standards
of admissibility and that the procedure for admitting selfauthenticating business records pursuant to the business record
exception was exactly adhered to at trial. Thus, a document
witness was not necessary and counsel had no basis to object to
the admissibility of the evidence at trial, which counsel
acknowledged. Counsel cannot be deemed ineffective for failing
to raise a meritless objection. See Schoenwetter, 46 So. 3d at 546.
The Court notes that Defendant’s motion more specifically
references State’s Exhibit 14, a business record from Discover
card. Like all of the documentary evidence discussed herein,
Exhibit 14 was admitted pursuant to the business records
exception as self-authenticating, and the State specially stated
that Exhibit 14 was “a record from Discover card including a
screen shot for an application and a business records
certification.” Defendant refers to Detective Bingham’s
testimony at trial as “unduly prejudicial surplusage in light of
inauthentic evidence[,]” however, the evidence was selfauthenticating and admissible pursuant to the business records
exception. See §§ 90.803(6) [and] 90.902(11), Fla. Stat.
Furthermore, the testimony was relevant and not “unduly
prejudicial surplusage” as Defendant claims. “Relevant evidence
is evidence tending to prove or disprove a material fact.”
§ 90.401, Fla. Stat. All relevant evidence is admissible unless
specifically excluded by law. See § 90.402, Fla. Stat. The
testimony Defendant references is Detective Bingham’s
testimony interpreting the information in the business record
exhibit for the jury. Detective Bingham explained that the
Discover corporate investigator provided screen shot
information of what their servers capture when someone

13

requests a credit card, which includes the date the application
was received, Ms. Rhodes’s name, address, and contact
information, and also listed Defendant as the authorized buyer.
It listed the email account associated with the account,
“[e-mail],” and the phone number for the
application. Therefore, Exhibit 14, like all of the exhibits at trial,
was not “unduly prejudicial surplusage,” and was relevant to
prove a material issue in Defendant’s scheme to defraud and
unauthorized use of Ms. Rhodes’s personal information. Thus,
counsel had no basis to object, and counsel cannot be deemed
ineffective for failing to raise a meritless objection. See
Schoenwetter, 46 So. 3d at 546.
In light of the foregoing, Defendant has failed to meet either
prong of Strickland. Counsel was not deficient for failing to secure
a document witness or failing to object or challenge documentary
evidence at trial, because all of the documentary evidence that
Defendant now challenges was relevant, self-authenticating, and
admissible pursuant to the business records exception to hearsay,
and the “requirements of admissibility” were adhered to. See
§§ 90.803(6) [and] 90.902(11), Fla. Stat. Defendant was not
prejudiced, because if counsel had objected, the objection would
have been overruled because the documents were admissible. See
id. Therefore, there is no reasonable probability that the outcome
of the trial would have been different if counsel had objected to
or challenged the documentary evidence at trial, and this claim
is denied.
Whether the trial court appropriately admitted the documents under the business
records exception to hearsay is an issue of state law, and a state court’s determination of
state law receives deference in federal court. Machin v. Wainwright, 758 F.2d 1431, 1433
(11th Cir. 1985). The state court record reflects that the prosecution timely notified the
defense of its intent to introduce at trial under the business records exception to the hearsay
rule the records from credit card companies, banks, a telephone company, a website, and
an internet provider. (Doc. 13-4 at 468–69) To comply with the rules of discovery, the
prosecution notified the defense of receipt of the records with certificates. (Doc. 13-4 at
470–71) At both the pretrial hearing concerning similar facts evidence and the trial, the

14

prosecution introduced into evidence the records under the business records exception.
(Doc. 13-4 at 315–16, 322, 329, 334, 340–41, 374–75, 409, 411, 413, 475–76) At trial, a
detective testified that an investigator with Discover Card sent him records concerning an
account in Rhodes’s name. (Doc. 13-4 at 437) After receipt of those records, the detective
subpoenaed the records from Discover Card (Doc. 13-4 at 437), and the prosecutor
introduced into evidence those subpoenaed records under the business records exception.
(Doc. 13-4 at 341–42)
Under state law, the records were both self-authenticating and admissible under the
hearsay exception. §§ 90.803(6) and 90.902(11), Fla. Stat. The records were relevant to
prove that Jimenez unlawfully applied for credit cards in Rhodes’s name and used those
credit cards without her permission. §§ 90.401 and 90.402, Fla. Stat. Because an objection
to the records would not have succeeded, trial counsel was not ineffective and the state court
did not unreasonably deny the claim. Pinkney v. Sec’y, Dep’t Corrs., 876 F.3d 1290, 1297 (11th
Cir. 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.”).
Ground One is DENIED.
Ground Two
Jimenez asserts that the state court violated his right to compulsory process and the
right to be informed of the nature and cause of the accusations. (Doc. 6 at 7–8) He contends
that the “arrest affidavit has no statements of charge[s] proffered against Jimenez or [ ] the
writs or judicial means by which he [was] brought to answer.” (Doc. 6 at 7) He further
contends that “no document [or] arrest affidavit [ ] state[s] [the] nature of [the] cause of
Jimenez’s arrest [on] January 6, 2009.” (Doc. 6 at 7) The Respondent asserts that the ground

15

is unexhausted and procedurally barred. (Doc. 13 at 5) Jimenez contends that he raised the
claim in his motion for post-conviction relief. (Doc. 6 at 7–8)
Jimenez did not raise the claim in his post-conviction motion (Doc. 13-4 at 175–224)
and raised the claim for the first time in his brief on post-conviction appeal. (Doc. 13-4 at
519–20) Because a defendant cannot raise a claim for the first time on post-conviction
appeal in a Florida court, Jimenez failed to exhaust his available state court remedies.
Mendoza v. State, 87 So. 3d 644, 660 (Fla. 2011). Accord Harris v. Sec’y, Fla. Dep’t Corrs., 709
F. App’x 667, 668 (11th Cir. 2018) (citing Castille v. Peoples, 489 U.S. 346, 351 (1989)).
If Jimenez returned to state court to exhaust the claim, the state court would deny
the claim as untimely, successive, and procedurally barred. Fla. R. Crim. P. 3.850(b), (c),
(h). Because Jimenez shows neither cause and actual prejudice nor a miscarriage of justice,
the claim is procedurally barred from federal review. Snowden, 135 F.3d at 736.
Even so, a charging document must “contain[ ] the elements of the offense intended
to be charged, and sufficiently apprise[ ] the defendant of what he must be prepared to
meet.” Russell v. United States, 369 U.S. 749, 763–64 (1962) (internal quotations and citations
omitted). The information contained the elements of all four crimes charged, cited the
relevant statute for each crime, alleged the dates when the crimes occurred and the locations
where the crimes occurred, and identified the name of the victim if appropriate. (Doc. 13-2
at 18–19) Because the information provided Jimenez sufficient notice of the crimes charged,
he is not entitled to relief. United States v. Resendiz-Ponce, 549 U.S. 102, 107–08 (2007) (citing
Hamling v. United States, 418 U.S. 87, 119 (1974)). 2

The federal constitutional right to compulsory process guarantees a defendant “‘compulsory
process for obtaining witnesses in his favor.’” United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982)
(italics in original) (citing U.S. Const. amend VI). Because Jimenez identifies no excluded witness
2

16

Ground Two is DENIED.
Ground Three
Jimenez asserts that an expert would have testified that the documents admitted into
evidence were “improperly generated” (Doc. 6 at 8–7), and trial counsel was ineffective for
stipulating to the admission of the documents instead of presenting testimony by the expert.
(Doc. 7 at 14–16) The post-conviction court denied the claim as follows (Doc. 13-4 at
235–36):
Defendant alleges that his counsel was ineffective for failing to
secure a computer or IT expert to testify. To establish a facially
sufficient claim of failure to call a witness, a defendant must
provide the identity of the prospective witness, the substance of
the witness’s testimony, an explanation about how the omission
of this evidence prejudiced the outcome of the trial, and an
assertion that the witness was available to testify. See Barthel v.
State, 882 So. 2d 1054, 1054–55 (Fla. 2d DCA 2004) (citing
Nelson v. State, 875 So. 2d 579, 582–83 (Fla. 2004)). However,
with regards to a claim that an expert witness should have been
retained to testify, a defendant need not name a specific expert
in a named field of expertise. See Terrell v. State, 9 So. 3d 1284,
1289 (Fla. 4th DCA 2009). To establish prejudice, a defendant
must show, based on the circumstances of the case, “‘that there
is a likelihood that the deficient conduct affected the outcome
of the court proceedings.’” Nelson, 875 So. 2d at 583 (quoting
Smith v. State, 445 So. 2d 323, 325 (Fla. 1983)). Defendant
asserts that a computer expert would have testified as to how
the credit card computer records were generated. Defendant
contends that a computer expert would have testified that the
credit card applications had been initiated from Ms. Rhodes’s
computer address. He further alleges that a computer expert
would have testified “that the records were improperly
generated in response to police investigatory action.”
Defendant contends that if his counsel had hired a computer
expert to testify as to these alleged facts, the outcome of the trial
would have been different.

whose testimony was relevant, material, and vital to his defense, his claim fails. Valenzuela-Bernal, 458
U.S. at 867.
17

Defendant is not entitled to relief on this claim because he has
failed to demonstrate that he was prejudiced. Defendant argues
that a computer expert would be able to testify that the credit
card applications had been initiated from Ms. Rhodes[’s]
computer address. However, the expert would not be able to
identify the user operating the computer. Ms. Rhodes testified
that Defendant would visit her at her home, and that he would
sometimes stay overnight. Therefore, even if a computer expert
were able to testify that the credit card applications originated
from Ms. Rhodes’s computer, the expert would not be able to
determine whether it was Defendant, who had access to the
home, or Ms. Rhodes who filled out the applications. Further,
Defendant’s claim that a computer expert would testify that the
records were improperly generated in response [to] a police
investigation is speculative and therefore procedurally barred.
See Spencer, 842 So. 2d at 63; Bass, 932 So. 2d 1170, 1172 (citing
Jones, 845 So. 2d at 64). Consequently, Defendant has failed to
establish that there is a likelihood that counsel’s failure to hire
a computer expert affected the outcome of the proceedings
pursuant to Nelson, and Defendant’s claim is denied.
Rhodes testified at trial that Jimenez stayed over at her home beginning in January
2008 until May 2008. (Doc. 13-4 at 296–98) Even if an expert could testify that the applicant
for the credit cards sent the applications from Rhodes’s computer, the expert could not
identify whom the applicant was. Also, a prosecutor, on behalf of a law enforcement officer,
may subpoena records for an investigation. § 27.04, Fla. Stat. State v. Investigation, 802 So.
2d 1141, 1143–44 (Fla. 2d DCA 2001). Consequently, the records were not “improperly
generated in response to police investigatory action.” (Doc. 13-4 at 235) Lastly, in his postconviction motion, Jimenez neither identified an expert who could have testified that the
applications originated from Rhodes’s computer nor presented an affidavit or testimony to
substantiate that testimony. (Doc. 13-4 at 207–08) Because Jimenez’s ineffective assistance
of counsel claim was speculative, the state court did not unreasonably deny the claim.
Sullivan v. DeLoach, 459 F.3d 1097, 1109 (11th Cir. 2006) (“This prejudice burden is heavy
where the petitioner alleges ineffective assistance in failing to call a witness because ‘often

18

allegations of what a witness would have testified to are largely speculative.’”) (quoting
United States v. Guerra, 628 F.2d 410, 413 (5th Cir. 1980)).
Ground Three is DENIED.
Ground Four, Ground Five, and Ground Six
Jimenez asserts that the trial court erred by relying on summaries of witness
testimony, instead of live witness testimony, to determine that the similar fact evidence was
admissible at trial and by allowing the similar fact evidence to become a feature at trial.
(Docs. 6 at 10 and 7 at 4–6) (“Substantive Claim”) He further asserts that the similar fact
testimony both included communications protected by the marital privilege and became a
feature at trial (Doc. 6 at 10, 12–13), and trial counsel was ineffective for failing to challenge
the admission of the testimony on these grounds. (Doc. 7 at 4–6, 16–20) (“Ineffective
Assistance of Counsel Claim”)
Substantive Claim
Jimenez asserts that the trial court erroneously relied on summaries of witness
testimony, instead of live witness testimony, to conclude that similar fact evidence was
admissible at trial and erroneously allowed the similar fact evidence to become a feature at
trial. (Docs. 6 at 10 and 7 at 4–6) The prosecutor notified the defense of its intent to
introduce testimony by Elizabeth Gonzalez as similar fact evidence at trial (Doc. 13-2 at
21–23), and the defense moved to exclude the similar fact evidence. (Doc. 13-2 at 25–27)
The trial judge heard testimony by live witnesses at a hearing (Doc. 13-2 at 59–107,
129–51) and denied the defense’s motion as follows (Doc. 13-2 at 168–70):
This cause came to be heard on May 17, 2013 and June 7, 2013
on the State of Florida’s Notice of Intent to Use Evidence of
Other Crimes, Wrongs, or Acts Committed by the Defendant
filed [ ] on May 10, 2010. The Defendant filed a Motion to

19

Exclude “Williams Rule” Testimony on December 7, 2010.
Based upon the testimony and other evidence presented, the
legal arguments presented by the parties, and the controlling
legal authority cited, the Court reaches the following
conclusions of law:
Relevant Case History & Allegations of the Charged Crime[s]
On March 26, 2010 an Amended Felony Information was filed
charging the Defendant, David Jimenez, with four offenses;
Scheme to Defraud, two counts of Criminal Use of Personal
Identification Information and Providing False Name to Law
Enforcement. The alleged victim of the first three offenses is
Sandra Rhodes. It is alleged that the Defendant met Ms.
Rhodes through an internet dating website, began a romantic
relationship with her[,] and then engaged in [a] scheme to
defraud her. Mr. Jimenez allegedly opened and used credit card
accounts in her name without her knowledge. He also allegedly
deceived Ms. Rhodes into purchasing a car. The testimony and
evidence presented at [the] hearing establishes the Facts
Involving the Charged Offenses set forth in the State’s
Memorandum of Law in Support of Similar Fact/Inextricably
Intertwined Evidence filed herein.
Williams Rule Evidence
In Williams v. State, 110 So. 2d 654, 659–60 (Fla. 1959), the
Florida Supreme Court enunciated the rule regarding the
admission of similar crime evidence: “Our view of the proper
rule simply is that relevant evidence will not be excluded merely
because it relates to similar facts which point to the commission
of a separate crime. The test of admissibility is relevancy. The
test of inadmissibility is a lack of relevancy.” In other words,
evidence of any facts relevant to a material fact in issue except
where the sole relevancy is character or propensity of the
accused is admissible unless precluded by some specific
exception or rule of exclusion.
Williams has been codified in § 90.404(2)(a), Fla. Stat. (2006)
which provides:
Similar fact evidence of other crimes, wrongs, or
acts is admissible when relevant to prove a
material fact in issue, including, but not limited
to, proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or

20

absence of mistake or accident, but it is
inadmissible when the evidence is relevant solely
to prove bad character or propensity.
To minimize the risk of a wrongful conviction, the similar fact
evidence must meet a strict standard of relevance. Heuring v.
State, 513 So. 2d 124 (Fla. 1987). The relevance of collateral
crime evidence is often a function of similarity. McLean v. State,
934 So. 2d 1248 (Fla. 2006); Williams v. State, 621 So. 2d 413
(Fla. 1993). To be legally relevant to show identity, it is not
enough that the factual situations sought to be compared bear a
“general similarity” to one another. Rather, the situations must
manifest “identifiable points of similarity.” Wright v. State, 473
So. 2d 1277, 1281 (Fla. 1985). However there is no requirement
that the collateral crime [ ] be absolutely identical to the crime
charged. Chandler v. State, 702 So. 2d 186, 193 (Fla. 1997).
However, when evidence of a collateral crime is admitted to
prove intent and knowledge, there is no requirement that the
two crimes share unique factors, as there is when the collateral
crime is introduced to establish identity. Tannihill v. State, 912
So. 2d 2 (Fla. 4th DCA 2005); Washington v. State, 737 So. 2d
1208 (Fla. 1st DCA 1999).
Evidence is admissible under § 90.404(2)(a) when it is probative
to show intent, which generally is an ultimate issue in the case.
Damren v. State, 696 So. 2d 709 (Fla. 1997); Jensen v. State, 555
So. 2d 414 (Fla. 1st DCA 1990). See Bradley v. State, 787 So. 2d
732, 741–42 (Fla. 2001); Pausch v. State, 596 So. 2d 1216, 1219
(Fla. 2d DCA 1992). Evidence of similar acts that contradict an
innocent explanation of the Defendant’s act is admissible.
Wuornos v. State, 644 So. 2d 1000, 1006–07 (Fla. 1994); Worden
v. State, 603 So. 2d 581, 583 (Fla. 2d DCA 1992).
However, similar fact evidence that the defendant committed a
collateral crime is inherently prejudicial because it creates the
risk that a conviction will be based on the defendant’s bad
character or propensity to commit crimes, rather than on proof
that he committed the charged offense. Before allowing
Williams rule evidence to be presented to the jury, the trial court
must find that the State has proved that the defendant
committed the collateral acts by clear and convincing evidence.
State v. Norris, 168 So. 2d 541, 543 (Fla. 1964); Henrion v. State,
895 So. 2d 1213, 1216 (Fla. 2d DCA 2005). Further, in order to
reduce the risk that the jury will convict based on the
defendant’s bad character, the State cannot make the collateral
act a feature of the trial. Steverson v. State, 695 So. 2d 687, 689

21

(Fla. 1997) “The prosecution should not go too far in
introducing evidence of other crimes. The state should not be
allowed to go so far as to make the collateral crime a feature
instead of an incident.” Randolph v. State, 463 So. 2d 186, 189
(Fla. 1984).
The Collateral Acts
As similar fact evidence it is alleged that during the same
general time frame, Mr. Jimenez met Elizabeth Gonzalez and
began a romantic relationship with her and then engaged in a
similar scheme to defraud her. Mr. Jimenez allegedly opened
and used credit card accounts in her name without her
knowledge. The testimony and evidence presented at [the]
hearing establishes the similar fact evidence set forth in the
State’s Memorandum of Law in Support of Similar
Fact/Inextricably Intertwined Evidence filed herein. This trial
court finds that the State has established that the defendant
committed these collateral acts by clear and convincing
evidence.
Conclusion
The allegations of the present charged crimes and the facts of
the collateral acts share similarities. The similarities are
pervasive, and the dissimilarities insubstantial. There is no
requirement the collateral acts be absolutely identical to the
crime charged. It has been established by clear and convincing
evidence that the defendant committed the collateral acts. The
evidence of the collateral acts are (sic) relevant to prove plan
and intent. The evidence of the collateral crime is probative and
evidence of the collateral crime is not substantially outweighed
by the prejudicial effect. The “Williams Rule” testimony of one
witness as to the collateral acts may be admitted at trial. This
Court will not permit the testimony of any other “Williams
Rule” witness or testimony of any other crime or act. The
Williams Rule evidence will not become a feature of the trial.
The Office of the State Attorney is directed to make only
incidental mention of the Williams Rule evidence in closing
argument.
Whether Gonzalez’s testimony was admissible as similar fact evidence is an issue of
state law, and a state court’s determination of state law receives deference in federal court.
Machin, 758 F.2d at 1433. At the pretrial hearing, the trial court heard live testimony by

22

Rhodes and Gonzalez and admitted into evidence records from credit card companies.
(Doc. 13-2 at 51, 58) Rhodes testified that she and Jimenez started dating in February 2008,
and Jimenez applied for credit cards in her name without her permission or knowledge.
(Doc. 13-2 at 61–76) Gonzalez testified that she met Jimenez in March 2008 and married
Jimenez in July 2008, and Jimenez applied for credit cards in her name without her
permission or knowledge. (Doc. 13-2 at 86–99)
The prosecutor proved the collateral crimes by clear and convincing evidence with
Gonzalez’s testimony corroborated by the records from the credit card companies.
Hernandez v. State, 16 So. 3d 336, 340 (Fla. 4th DCA 2009) (“To meet the clear and
convincing standard, ‘[t]he evidence must be credible; the memories of the witnesses must
be clear and without confusion; and the sum total of the evidence must be of sufficient
weight to convince the trier of fact without hesitancy.’”) (citation omitted). Jimenez
committed the collateral crimes at the same time as the charged crimes, against the same
type of victim as the charged crimes, using a strikingly similar method to defraud the victim
as the charged crimes. DeLuise v. State, 72 So. 3d 248, 251 (Fla. 4th DCA 2011), receding on
other grounds by Noel v. State, 127 So. 3d 769 (Fla. 4th DCA 2013) (“The testimony pertaining
to the Williams rule victims qualified as admissible similar fact evidence because this
evidence involved conduct strikingly similar to that committed in the schemes against the
victims named in the information.”).
The trial judge took steps to prevent the similar fact evidence from becoming a
feature at trial. Before the admission of Gonzalez’s testimony at trial, the trial court
instructed the jury as follows:
[Court:]

Ladies and gentlemen, I’m going to read
this to you, and I would ask you to read

23

along with me. When each of you get a
copy, that’s your copy to keep.
Okay. I’m going to read it to you. If you
would read along with me.
Evidence of other crimes, wrongs, or acts,
Williams rule.
The evidence you are about to receive
concerning evidence of other crimes,
wrongs, or acts allegedly committed by
the defendant will be considered by you
for the limited purpose of proving intent or
plan on the part of the defendant, and you
shall consider it only as it relates to those
issues.
However, the defendant is not on trial for
a crime, wrong, or act that is not included
in the information; that is, included in the
charging document in this case.
(Doc. 13-3 at 314–15). During the final charge to the jury, the trial court read the same
instruction. (Doc. 13-3 at 569) § 90.404(2)(d)(2), Fla. Stat.
During closing argument, the prosecutor told the jury that Jimenez used the credit
cards in Rhodes’s name to purchase items, meals, and vacations for Gonzalez. (Doc. 13-3
at 497–507, 541–48) The prosecutor referenced the limiting instruction and told the jury not
to consider Gonzalez’s testimony as propensity evidence (Doc. 13-3 at 508):
[Prosecutor:]

And Elizabeth Gonzalez, her testimony
— and I want to be very clear. You all
heard the Williams Rule instruction, and
the Judge is going to read it to you again.
And don’t use Elizabeth Gonzalez’s
testimony to say that this defendant has a
propensity to commit these types of
crimes. Don’t do that. That’s not what it’s
for. But what we do want you to use it for
is to show his intent and his plan with
Sandra Rhodes. That’s why Elizabeth

24

Gonzalez’s testimony is important. That’s
why it’s part of that scheme, part of that
plan.
Look at the similarities between the two
women: Both single mothers; English is
their second language; they both have very
good credit — their credit didn’t get
messed up until after this businessman
that [the] defense is saying swooped in and
helped them — that’s when their credit got
messed up.
They were both easily manipulated quite
frankly. They fell for it. But that doesn’t
mean they can’t be victims because they
fell for his lies, and they bought into it
because he was a really good liar. He was
able to develop these whirlwind
relationships with them, and that’s how he
got access to their personal information.
In both cases he kept his finances very
private. Especially with Sandra Rhodes,
he had the key for the mail. And with
Elizabeth Gonzalez, you know, she said it
was just part of, you know, her upbringing
and stuff. It was private. She let his stuff
be. She wasn’t rifling through his mail or
his paperwork. Remember, she said that it
was kind of strange after this all came to
light. She was looking around for his stuff.
He didn’t really have much financial
documents around. She did find all of
those credit cards and bank cards in his
wallet, but he didn’t really have a bunch
of statements and stuff like that lying
around. Everything about him was very
secret, including his job doing confidential
things at Lockheed Martin.
So you heard from Elizabeth Gonzalez
who doesn’t even know Sandra Rhodes.
They saw each other kind of sitting in the
hall. They didn’t know each other. They
come in and give you a very similar story

25

of this romance, and I submit to you that
the similarities between their cases, that
corroborates what Sandra Rhodes said,
and that lends credibility to Sandra
Rhodes’s story about how he wrapped her
in and manipulated her. And that’s the
purpose
of
Elizabeth
Gonzalez’s
testimony.
Because the prosecutor proved the similar fact evidence by clear and convincing
evidence, the collateral crimes against Gonzalez were strikingly similar to the charged
crimes against Rhodes, the trial court gave the jury two limiting instructions concerning the
similar fact evidence, and the prosecutor appropriately referred to the similar fact evidence
in closing argument, the state court did not unreasonably deny Jimenez’s claim. Dowling v.
United States, 493 U.S. 342, 353 (1990).
The substantive claim is DENIED.
Ineffective Assistance of Counsel Claim
Jimenez asserts that trial counsel was ineffective for not challenging the admission
of the similar fact evidence (“sub-claim A”) and for not asserting the marital privilege over
Gonzalez’s testimony (“sub-claim B”).
Sub-claim A
The post-conviction court denied Jimenez’s claim that trial counsel was ineffective
for not challenging the admission of the similar fact evidence as follows (Doc. 13-4 at
231–33, 242–43) (state court citations omitted):
Defendant asserts that his counsel was ineffective for failing to
object to the State’s notice of intent to use Williams Rule
evidence, and for failing to challenge the admissibility of
Williams Rule testimony. Defendant asserts that the testimony
sought to be introduced was never detailed, and because
counsel was not given an opportunity to cross-examine Ms.
Gonzalez, counsel was unaware what the State would elicit

26

from her and unprepared to argue the balancing test required to
determine the admissibility of Williams Rule evidence.
Defendant asserts that Ms. Gonzalez was proceeding with a
divorce from Defendant and “the testimony of a ‘scorned
woman’ was certain to discredit [Defendant] and show him to
be a ‘bad actor.’” He asserts that he provided her with a
Mercedes Benz in her name, that he did not ask her to work,
that he intended to provide for her needs, and alleges that
nothing about his conduct toward Ms. Gonzalez proves that he
intended to defraud her. Defendant asserts that but for counsel’s
deficiency in failing to challenge or object to the admissibility
of Ms. Gonzalez’s Williams Rule testimony, the outcome of the
proceeding would have been different.
As an initial matter, Defendant claims that the testimony
sought to be introduced was never detailed, and because
counsel was not given a chance to cross-examine Ms.
Gonzalez, he was unaware of what the State would elicit from
her. However, as Defendant’s motion admits, Ms. Gonzalez
was deposed shortly before the State filed its Williams Rule
motion. Further, contrary to Defendant’s allegation, defense
counsel did cross examine Ms. Gonzalez at the Williams Rule
hearing.
Notwithstanding, Defendant is not entitled to relief because
counsel was not deficient. Contrary to Defendant’s allegation,
counsel repeatedly objected to the State’s notice of intent to use
Williams Rule evidence and did challenge its admissibility,
because he filed a Motion to Exclude Williams Rule Testimony
on December 7, 2010, long before his Williams Rule hearing
took place in 2013. In his motion, counsel argued that the
Williams Rule evidence requires that there be some similarity or
uniqueness between the crime charged and the evidence of the
collateral crime, and that any uniqueness or similarity in this
case is outweighed by differences or dissimilarities in the way
the crimes were carried out. Further, at the Williams Rule
hearing, counsel did cross-examine Ms. Gonzalez, and elicited
testimony from her that Defendant had purchased a Mercedes,
that he had furnished an apartment, that she was not working
at the time, and that Defendant took care of all the household
expenses, as he describes in his motion. Additionally, after the
Williams Rule hearing took place, counsel filed a memorandum
of law in support of his motion to exclude [the] Williams Rule
testimony, in which he summarized the testimony, explained
the “balancing test” Defendant references regarding the
Williams Rule and inextricably intertwined evidence, and

27

analyzed the proposed Williams Rule evidence. Counsel argued
that Ms. Gonzalez’s testimony was not inextricably intertwined
and therefore inadmissible and was relevant solely to show bad
character or propensity. Despite counsel’s repeated challenges
to the admissibility of Ms. Gonzalez’s testimony, the Court
ruled that the testimony was admissible. Finally, counsel again
objected to the use of [the] Williams Rule testimony at trial,
stating that he was not waiving his previous objection to the
introduction of Williams Rule evidence, and specifically stated
that he was renewing his objection for the purposes of appeal,
but the objection was overruled. Thus, counsel was not
deficient because he did object to the admission of the Williams
Rule evidence. Because counsel was not deficient, the Court
need not address prejudice. See Maxwell, 490 So. 2d at 932. This
claim is denied.
...
Defendant states that “[c]ounsel failed to properly isolate the
Court’s claim that [Ms. Gonzalez’s] testimony was intertwined
with that of Ms. Rhodes.” While Defendant’s argument is
unclear, the Court interprets Defendant’s claim to assert that
counsel was ineffective for failing to challenge that Court’s
ruling as to the admissibility of Ms. Gonzalez’s testimony
pursuant to the Williams Rule. He argues that the testimony
“does not even approach the finding of ‘inextricably
intertwined.’” He claims that Ms. Gonzalez was biased because
her divorce from Defendant was pending, because she was
seeking to gain the upper hand in contested custody
proceedings over their child, and because Ms. Gonzalez feared
that she would be arrested for fraud, and her testimony was only
used to prove bad character. He alleges that but for counsel’s
deficiency, the outcome of the trial would have been different.
Defendant is not entitled to relief because counsel was not
deficient. As discussed above, counsel challenged the State’s
argument that the testimony of Ms. Rhodes and Ms. Gonzalez
was inextricably intertwined by filing a motion to exclude
Williams Rule evidence and a memorandum in support of his
motion. Additionally, he again objected to the introduction of
Williams Rule at trial, and the objection was overruled. Finally,
counsel was not deficient because he also preserved his
objection to the Williams Rule evidence for appellate review by
obtaining a pretrial ruling on the admissibility of the evidence.
See McWatters v. State, 36 So. 3d 613, 627 (Fla. 2010) (finding
that the defendant had preserved his Williams Rule objection for

28

review by obtaining a pretrial ruling on the admissibility of the
evidence) (citing § 90.104(1), Fla. Stat.) (providing that pretrial
ruling on admissibility of evidence preserves objection for
appellate review)). Counsel also specifically included the
granting of the State’s motion for Williams Rule evidence in his
Statement of Judicial Acts to be Reviewed. Thus, as Defendant
has failed to demonstrate that his counsel was deficient, the
Court need not address prejudice. See Maxwell, 490 So. 2d at
932. This claim is denied.
...
Defendant’s claim again alleges that counsel was ineffective
“for failing to challenge his written objection to the Williams
Rule evidence and failing to object to its admission at trial.”
Defendant first admits that his counsel did file a written
objection and also objected to the admission of testimony of
Ms. Gonzalez at trial, and states that the Court entered an order
permitting the evidence and acknowledging that the issue was
preserved for trial. He then states that counsel was ineffective
for failing to “challenge written objection to the Williams Rule
inextricably intertwined evidence and objected to admission of
testimony from [Ms. Gonzalez], preserved for trial,” and
“failing to present that the testimony provided by [Ms.
Gonzalez] was inadmissible to the [C]ourt.” He argues that
counsel was ineffective for failing to present the ruling in Rolle
v. State, 37 Fla. L. Weekly D1920 (Fla. 2nd DCA 2012), under
which “the Sixth Circuit is bound inadmissibility of [Williams]
Rule evidence by the 2nd DCA.” Defendant alleges that
without the Williams Rule evidence, the evidence of Ms.
Rhodes would have been insufficient to convict him.
Defendant’s claim is unclear, as Defendant contradicts himself
within his claim. He argues that counsel was ineffective for
failing to challenge or object to Williams Rule witness Ms.
Gonzalez, and for failing to allege that her testimony was
inadmissible, but in the same claim acknowledges that counsel
both filed a written objection to the Williams Rule evidence and
objected to the evidence at trial. However, based on
Defendant’s argument surrounding Rolle, it appears that
Defendant is arguing that the holding in Rolle precludes the
admission of any Williams Rule evidence in cases arising out of
the Sixth Circuit, and counsel was ineffective for failing to
advise the Court of the ruling. However, the Court in Rolle
found on direct appeal that, in that case, the victim’s testimony
that the defendant had touched her sexually in Pembroke Pines

29

was not necessary in order to understand her testimony that the
defendant touched her sexually in Clearwater, and the trial
court abused its discretion by allowing such testimony. Rolle v.
State, 93 So. 3d 1230, 1231 (Fla. 2d DCA 2012). The holding in
Rolle does not preclude the use of all Williams Rule evidence in
the Sixth Circuit. Further, the instant case is distinguishable
from Rolle, because, as described above, this Court held a
Williams Rule hearing prior to trial specifically to determine the
admissibility of [the] Williams Rule testimony, and the
testimony was found to be relevant to prove plan and intent,
and was therefore admissible. Thus, even if counsel had
presented the Court with the holding in Rolle, there is no
reasonable probability that it would have changed the Court’s
ruling, because the holding in Rolle does not preclude Williams
Rule evidence in the Sixth Circuit. This claim is denied.
Trial counsel moved to exclude the similar fact evidence before trial. (Doc. 13-2 at
25–27) At the pretrial hearing on the motion, trial counsel cross-examined Rhodes,
Gonzalez, and the detective. (Doc. 13-2 at 51, 127) After the hearing, trial counsel filed a
memorandum and argued that Gonzalez’s testimony was neither similar fact evidence nor
inextricably intertwined evidence and only relevant to prove Jimenez’s bad character and
propensity to commit the charged crimes. (Doc. 13-2 at 156–63) At trial, trial counsel
renewed the motion and asked for the limiting instruction both before Gonzalez’s testimony
and during the final charge. (Doc. 13-3 at 290–95, 486) Because the state court record
supports the post-conviction court’s denial of the claim, the state court did not unreasonably
deny the claim.
Sub-claim A is DENIED.

30

Sub-claim B
The post-conviction court denied the claim that trial counsel was ineffective for not
claiming the martial privilege over Gonzalez’s testimony as follows (Doc. 13-4 at 272–78)
(state court record citations omitted):
Defendant argues that counsel was ineffective for waiving his
marital privilege at his Williams Rule hearing and at trial.
Defendant asserts that counsel failed to exercise his absolute
privilege to prevent Ms. Gonzalez from revealing confidential
marital communications at pretrial hearings or at trial itself. He
asserts that the State “blurred the proffer of testimony to make
unclear whether the information provided by [Ms. Gonzalez]
was the result of confidential communication between [Ms.
Gonzalez] and [Defendant] or whether the conversations had
occurred after the marriage.” Defendant asserts that “all credit
applications were pre-agreed to be subsequently ratified within
the confines of the confidential marital relationship.”
Defendant argues that under the evidentiary rule, he is the
holder of the marital privilege, and only he could waive it.
Defendant asserts that he was prejudiced because Ms.
Gonzalez’s testimony, which he asserts was precluded by
marital privilege, was admitted at trial without objection by
counsel. Defendant asserts that “the bulk” of Ms. Gonzalez’s
testimony was precluded by marital privilege, and points to
specific pages in the trial transcript that contain testimony he
asserts is precluded by privilege on pages 4 and 5 of his third
amended motion. Defendant asserts that if the proper
objections had been made, Ms. Gonzalez’s testimony would
have been determined to be inadmissible at trial and the
outcome of the proceedings would have been different. The
State was directed to respond to this claim.
In its response, the State alleges that counsel was not deficient
for failing to object to Ms. Gonzalez’s testimony at the Williams
Rule hearing or at trial because her testimony fell within an
exception to marital privilege. The State argues that under
Section 90.504(3)(b), Florida Statutes, there is no privilege “in
a criminal proceeding in which one spouse is charged with a
crime committed at any time against the person or property of
the other spouse, or the person or property of either.” The State
asserts that Ms. Gonzalez’s testimony was presented as similar
fact evidence of a collateral crime, and although Defendant was
not charged with a crime against Ms. Gonzalez, he still

31

committed a crime against Ms. Gonzalez, his wife at the time.
The State asserts that refusing to apply the exception to marital
privilege would “protect marital harmony to the detriment of
the spouse that it is trying to protect.” Therefore, the State
argues that counsel’s failure to object to Ms. Gonzalez’s
testimony as privileged was objectively reasonable because it
fell within the exception to marital privilege under Section
90.504(3)(b), Florida Statutes.
Further, the State asserts that even if the exception did not apply
and Defendant could assert his marital privilege, only portions
of Ms. Gonzalez’s testimony could be redacted. Ms. Gonzalez
testified that she met Defendant in March of 2008, and shortly
thereafter he took her to dinner at Carrabba’s, met her at
Disney, purchased airfare and stays at hotels, all using credit
cards in Ms. Rhodes’s name. She testified that they married on
July 2, 2008 in Puerto Rico, and on that date, marital privilege
applied, but the testimony regarding communications between
Ms. Gonzalez and Defendant before that date was not
privileged. Therefore, the State argues that Ms. Gonzalez’s
testimony regarding the purchases Defendant made on credit
cards in Ms. Rhodes’s name prior to the marriage was still
admissible, and would have been enough evidence for a
reasonable jury to find Defendant guilty. Therefore, the State
asserts that Defendant failed to prove the prejudice prong of
Strickland.
The Court finds that Defendant is not entitled to relief.
Pursuant to Section 90.504(1), Florida Statutes, a party to a
valid marriage may refuse to disclose and prevent his or her
spouse from disclosing confidential communications between
the spouses made during the marriage. “Either party can invoke
the privilege and refuse to disclose or prevent another from
disclosing those communications.” Pagan v. State, 29 So. 3d
938, 958 (Fla. 2009). However, there are three exceptions,
during which the marital privilege does not apply. See
§ 90.504(3), Fla. Stat. Under Section 90.504(3)(b), Florida
Statutes, there is no privilege in a criminal proceeding “in which
one spouse is charged with a crime committed at any time
against the person or property of the other spouse.” Here,
marital privilege does not apply, because Ms. Gonzalez’s
testimony that Defendant used her personal identification
information to open up credit cards in her name without her
permission was presented as similar fact evidence of a collateral
crime that Defendant had committed against her. See id.

32

Moreover, even if Ms. Gonzalez’s testimony did not fall under
the exception identified in Section 90.504(3)(b), Florida
Statutes, counsel was not deficient for failing to object to Ms.
Gonzalez’s testimony because her trial testimony and Williams
Rule testimony does not violate [the] marital privilege; the
privilege would only apply to confidential communications
made between Defendant and Ms. Gonzalez while they were
married, and would not apply to communications made while
they were not married. See State v. Norris, 352 So. 2d 875, 877
(Fla. 3d DCA 1977). Further, marital privilege would not
extend to Defendant’s actions. See Kaczmar v. State, 104 So. 3d
990, 999 (Fla. 2012) (citing Kerlin v. State, 352 So. 2d 45, 51–52
(Fla. 1977)) (finding the privilege extends only to
communications, not to acts which are in no way
communications).
In the instant case, Ms. Gonzalez testified at trial that she first
met Defendant in March of 2008, and they later married on July
2, 2008; therefore, marital privilege would not apply to Ms.
Gonzalez’s testimony relating to actions or communications
that occurred between March of 2008 and July 2, 2008. See id.
On pages 4 and 5 of his third amended motion, Defendant
points to Ms. Gonzalez’s testimony at trial that she did not give
Defendant permission to spend her money, her testimony that
she looked through Defendant’s things, and her testimony
stating that Defendant was always using credit cards and
signing his name. Defendant further cites to Ms. Gonzalez’s
testimony regarding when she discovered the fraudulent credit
cards, and her testimony that she did not consent to or have
knowledge that the credit cards had been opened in her name.
However, her testimony revealed that the credit card accounts
were opened prior to the marriage. Thus, none of the testimony
specifically cited to by Defendant relates to confidential
communications made between Defendant and Ms. Gonzalez
while they were married and is therefore not privileged. See
Norris, 352 So. 2d 875, 877; Kaczmar, 104 So. 3d at 999.
Defendant’s motion then goes on to broadly allege that, in
addition to the testimony he cites, “the bulk of [Ms. Gonzalez’s]
testimony from T-315 to 371” was precluded. To that end, the
bulk of Ms. Gonzalez’s testimony related to Defendant’s
actions and events that occurred prior to their marriage and are
therefore not precluded by privilege. See Norris, 352 So. 2d 875,
877; Kaczmar, 104 So. 3d at 999. During her direct examination,
Ms. Gonzalez testified that she first met Defendant in March of

33

2008, while she was on vacation visiting her sister, and he gave
her his contact information. Ms. Gonzalez testified that she was
planning on staying in town for one week, and during that
week, Defendant took her and her family to Carrabba’s, to
Disney, to Wolfgang Puck Cafe, and various other places, and
that Defendant always paid. She testified that when she
returned to Puerto Rico, they stayed in contact, and Defendant
would mail her gifts. Ms. Gonzalez testified that in April of
2008, Defendant tried to come visit her, but it did not work out,
but that Defendant sent Ms. Gonzalez’s mother a Tiffany and
Company ring for her birthday, and arranged for Ms. Gonzalez
and her sisters [to] be driven around in a limousine for the day.
Ms. Gonzalez testified that in early May of 2008, Defendant
paid for her to fly back to Florida for a weekend, paid for her to
stay in a nice hotel overlooking the beach, and paid for gifts
[and] dinners [at] high-end restaurants. She testified that
Defendant drove a black Mercedes, which he represented to be
his. Ms. Gonzalez testified that in mid-May of 2008, shortly
after she had returned to Puerto Rico, Defendant visited her in
Puerto Rico. She testified that while there, Defendant went
shopping with her family, bought her flowers and gifts, paid for
dinner at a fancy restaurant, and stayed at a nice hotel in a room
with a view to the ocean. She testified that Defendant proposed
marriage to her during that trip. Ms. Gonzalez testified that
after the proposal, she and Defendant discussed moving her to
Tampa, and prepared her finances for the move. She testified
that when she advised Defendant that she might not be able to
get a job in Tampa, he was comforting and told her not to worry
about it and that he would take care of everything. This
testimony was elicited to demonstrate that Defendant was using
Ms. Rhodes’s credit cards to fund his relationship with Ms.
Gonzalez, and support the State’s argument that Ms. Rhodes
would never have consented to the use of her information for
those purposes, and to support the State’s argument that
Defendant had a common scheme or plan.
Ms. Gonzalez further testified that prior to the marriage,
Defendant returned to Puerto Rico and told her that he had
added her to his accounts, and gave her an American Express
card to use if she needed anything for her move to Florida. Ms.
Gonzalez testified that she did not authorize Defendant to open
the account; that she thought that it was his account, and that
he was responsible for the payments and she was only a
secondary user. Ms. Gonzalez testified that just prior to the
marriage, Defendant told her he needed her personal
identification information in order to add her and her daughter

34

to his insurance policy, which she provided because she thought
it was a valid reason and they were going to get married. This
testimony was elicited to support the State’s argument that
Defendant had a common scheme or plan as to Ms. Rhodes and
to lend credibility to her testimony. Ms. Gonzalez testified that
on July 2, 2008, she and Defendant married at a big, high-end
resort in Puerto Rico. Because all of testimony recounted above
related to actions, communications, and events that occurred
prior to the marriage, [and therefore] it is not precluded by
marital privilege. See § 90.504, Fla. Stat. See also Norris, 352 So.
2d 875, 877.
Ms. Gonzalez testified that after she and Defendant married,
they moved to Westchase, where she signed a lease for an
apartment at Defendant’s request, but that Defendant would
give her money orders to make the lease payments. Ms.
Gonzalez then identified various phone numbers, and testified
that she never saw Defendant use cash, only credit cards, and
that she saw him signing his name 98 percent of the time. Ms.
Gonzalez then identified Defendant’s signature on receipts
included in the State’s exhibits. Ms. Gonzalez testified that
while living with Defendant, he would go to the mailbox, and
all of the mail was in his name; she did not open mail unless it
was a card from a family member or friend in her name.
Ms. Gonzalez’s testified that at some point, everything
changed, and she received an eviction notice and shortly after,
a visit from Detective Bingham notifying her that Defendant
was under investigation for fraud. Ms. Gonzalez testified that
after learning of the investigation, she checked her credit history
and learned that there were multiple credit cards opened in her
name that were not hers, with balances of $50[,000 to $]60,000.
She testified that she had no knowledge that the cards were
opened and did not give anyone consent to use her information
to open the accounts. The State then reviewed the various credit
card records and the charges they reflected that had been
entered as exhibits with Ms. Gonzalez, noting that each
account was opened prior to the marriage and that the charges
incurred were unauthorized.
Ms. Gonzalez then testified that after Detective Bingham
notified her of the investigation, she went through Defendant’s
things for the first time, locating his wallet with two driver’s
licenses and several credit cards. She testified that she
subsequently ended the relationship by moving to be with
family. She explained that she filed for divorce, and was able to

35

“clear the credit cards” that Defendant opened, but was still
paying for the debt incurred by Defendant on her savings
account. On cross-examination, Ms. Gonzalez testified that,
she did not know whether the credit card statements were being
mailed to her and Defendant’s apartment, and testified that
while married, she did have a car available and furnished home
available to her. She testified that she was of the understanding
that Defendant worked, and again testified to actions and
events that occurred prior to the marriage. Again, a majority of
testimony recounted above related to actions, communications,
and events that occurred prior to the marriage, it is not
precluded by marital privilege. See § 90.504, Fla. Stat. See also
Norris, 352 So. 2d 875, 877. The limited testimony by Ms.
Gonzalez that related to events that took place during the
marriage, such as her testimony that Defendant retrieved the
mail or primarily used credit cards, relates to Defendant’s
actions during the marriage, and not communications, and is
therefore not precluded by marital privilege. See Kaczmar, 104
So. 3d at 999.
Finally, the Court notes that while Defendant alleges that
counsel failed to object to Ms. Gonzalez’s testimony at the
Williams Rule hearing, he does not identify any specific
testimony that counsel should have objected to during that
hearing, and cites only to her trial testimony. Notwithstanding,
Ms. Gonzalez’s testimony at trial was consistent with her
testimony at the Williams Rule hearing. Thus, her testimony at
the Williams Rule hearing would not have been precluded by
marital privilege for the same reasons as discussed above, and
counsel had no basis to object.
In light of the foregoing, Defendant fails to meet either prong
of Strickland. Counsel was not deficient for “waiving”
Defendant’s marital privilege or for failing to object to Ms.
Gonzalez’s testimony as privileged because Ms. Gonzalez did
not testify to any confidential communications that occurred
during the marriage, and therefore her testimony was not
precluded by marital privilege. See Norris, 352 So. 2d 875, 877.
As is set forth in detail above, Ms. Gonzalez’s testimony relates
primarily to Defendant’s actions and communications that
occurred prior to their marriage, which is not precluded by
marital privilege. See Kaczmar, 104 So. 3d at 999. The limited
testimony by Ms. Gonzalez that related to events that took
place during the marriage, such as her testimony that
Defendant retrieved the mail or primarily used credit cards,
relates to Defendant’s actions during the marriage and is not

36

precluded by marital privilege. See id. Counsel cannot be
deemed ineffective for failing to raise a meritless objection. See
Schoenwetter v. State, 46 So. 3d 535, 546 (Fla. 2010).
Likewise, Defendant was not prejudiced because if counsel had
objected to Ms. Gonzalez’s testimony based on marital
privilege, the objection would have been overruled because her
testimony was not precluded by marital privilege as described
above. See Norris, 352 So. 2d 875, 877; Kaczmar, 104 So. 3d at
999. Further, even if marital privilege applied, all of Ms.
Gonzalez’s testimony regarding the purchases Defendant made
using Ms. Rhodes’s credit cards prior to the marriage would still
have been admissible at the Williams Rule hearing and at trial.
See id. Further, the record reflects that the credit cards opened
in Ms. Gonzalez’s name without her consent were opened on
June 13, 2008, and May 28, 2008, prior to the marriage, and
her testimony regarding the credit cards would still have been
admissible. See id. Consequently, there is no reasonable
probability that the outcome of the trial would have been
different if counsel had objected to Ms. Gonzalez’s testimony,
and this claim is denied.
Whether the marital privilege applies to Gonzalez’s testimony is an issue of state
law, and a state court’s determination of state law receives deference in federal court.
Machin, 758 F.2d at 1433. At trial, Gonzalez testified that she married Jimenez on July 2,
2008. (Doc. 13-4 at 606) Gonzalez’s testimony concerning communications between her
and Jimenez before their marriage, including how they met, where they went, what Jimenez
told her about his job, what Jimenez told Gonzalez about a credit card that he gave her, and
what Jimenez told Gonzalez about his need for her personal identification information, was
not protected by the marital privilege. (Doc. 13-4 at 345–67) § 90.504, Fla. Stat. State v.
Norris, 352 So. 2d 875, 876 (Fla. 3d DCA 1977).
Gonzalez testified that, during the marriage, Gonzalez signed the lease for their new
apartment because Jimenez agreed to pay the rent, Gonzalez saw Jimenez almost always
use a credit card to pay for everything else, Gonzalez saw Jimenez sign documents and

37

could identify Jimenez’s signature on receipts, and Gonzalez saw Jimenez almost always
open the mail. (Doc. 13-4 at 367–73) Gonzalez incurred a large debt in her savings account
after she gave Jimenez a card for that account. (Doc. 13-4 at 380–82) The prosecution
introduced into evidence records from credit card accounts in Gonzalez’s name (Doc. 13-4
at 374–75), and Gonzalez testified that she never knew about the accounts and never
allowed anyone to use the accounts for purchases. (Doc. 13-4 at 374–80) Because Gonzalez
primarily testified about Jimenez’s actions during the marriage corroborated by the records
and any communication between her and Jimenez disclosed during the marriage was
incidental to those actions, her testimony was not protected by the marital privilege.
Kaczmar v. State, 104 So. 3d 990, 999 (Fla. 2012).
Those incidental communications included the following. Gonzalez disclosed that,
during the marriage, Jimenez was “very pushy” when he asked her to sign the lease and
told her that “we’re married, and you don’t do anything for our relationship.” (Doc. 13-4 at
367) Jimenez told her that he wanted them to live at the apartment because her daughter
would attend the best schools. (Doc. 13-4 at 368) Gonzalez testified that, when Jimenez
demanded the bank card for her savings account, Jimenez told her that he had lost his credit
cards and promised to put money in the savings account. (Doc. 13-4 at 381) Also, Gonzalez
testified that when she confronted Jimenez about the eviction or other financial problems,
“it ended up in an argument and a threat.” (Doc. 13-4 at 383)
The prosecution introduced Gonzalez’s testimony, corroborated by records from
credit card companies, as similar fact evidence to prove intent or plan on the part of Jimenez.
(Doc. 13-3 at 315) During closing argument, the prosecutor relied on the romantic
relationship between Gonzalez and Jimenez and the credit card accounts that Jimenez

38

applied for and used without Gonzalez’s permission to prove his intent and plan to defraud
Rhodes. (Doc. 13-3 at 508–10) Also, unrebutted evidence including records from credit card
companies, banks, a telephone company, a website, and an internet provider substantiated
the fraud that Jimenez committed against Rhodes. Even if reasonable counsel would have
asserted the marital privilege over those peripheral communications between Jimenez and
Gonzalez, Jimenez could not demonstrate a reasonable probability that the outcome at trial
would have changed. As such, the state court did not unreasonably apply Strickland.
Strickland, 466 U.S. at 694. Carty v. Thaler, 583 F.3d 244, 261–62 (5th Cir. 2009).
Sub-claim B is DENIED.
Ground Four, Ground Five, and Ground Six are DENIED.
Ground Seven
Jimenez asserts that the trial court should have excluded Rhodes’s testimony
concerning her bankruptcy at trial (Docs. 6 at 16–17 and 7 at 21–22), and trial counsel was
ineffective for not objecting to the testimony on authenticity and hearsay grounds. (Doc. 7
at 21) The Respondent asserts that the ground is unexhausted and procedurally barred.
(Doc. 13 at 8) Jimenez contends that he raised the claim in his motion for post-conviction
relief. (Doc. 6 at 16) However, in his post-conviction motion, Jimenez asserted that trial
counsel was ineffective for not obtaining bankruptcy records filed by Rhodes. (Doc. 13-4 at
208) Jimenez raised the claim concerning trial counsel’s failure to object to Rhodes’s
testimony for the first time in his brief on post-conviction appeal. (Doc. 13-4 at 542–45)
Because a defendant cannot raise a claim for the first time on post-conviction appeal in a
Florida court, Jimenez failed to exhaust his available state court remedies. Mendoza, 87 So.
3d at 660. Harris, 709 F. App’x at 668.

39

If Jimenez returned to state court to exhaust the claim, the state court would deny
the claim as untimely and successive. Fla. R. Crim. P. 3.850(b), (h). Because Jimenez shows
neither cause and actual prejudice nor a miscarriage of justice, the claim is procedurally
barred from federal review. Snowden, 135 F.3d at 736.
Ground Seven is DENIED.
Ground Eight
Jimenez asserts that trial counsel was ineffective for not raising a viable defense that
the criminal charges amounted to a civil dispute arising from a “lover’s spat.” (Docs. 6 at
17 and 7 at 22–24) The post-conviction court denied the claim as follows (Doc. 13-4 at
238–41) (state court record citations omitted):
Defendant’s claim alleges that his counsel was ineffective for
failing to develop a viable defense for Defendant based on a
“lover’s spat” between the parties. Defendant contends that Ms.
Rhodes’s claim is “at best” a civil financial dispute. Defendant
asserts that although Ms. Rhodes claimed she did not authorize
certain credit applications and did not know she was the
primary creditor, she ratified the applications by using the credit
cards. Defendant claims that his counsel never discussed “the
issue” with Defendant and never explored at trial whether Ms.
Rhodes ever made a civil demand upon Defendant, which
Defendant contends is “a precondition to any civil claim
including an action for civil theft.” While his claim is unclear,
Defendant appears to cite to portions of the record on pages 35
through 44 of his third amended motion which support his
proposed defense that this case is a civil financial dispute,
because Ms. Rhodes was aware or may have been aware of the
accounts opened in her name, and used the accounts herself.
He cites to trial testimony where Ms. Rhodes testified that
Defendant owed her money, that she told Detective Bingham
that she knew Defendant had opened credit cards in her name,
that she had purchased State Farm car insurance, food, and gas
with the credit cards, and that she had filed for bankruptcy; he
asserts that Ms. Rhodes used a Bank of America credit card to
enter into a lease agreement for an apartment that Defendant
asserts was his residence from March [to] June 2008, he cites to
a police report by Deputy Hugo Castillo which indicated that

40

Deputy Castillo advised Ms. Rhodes that her case was a civil
matter, and he cites to deposition testimony from Detective
Bingham where the detective stated that Ms. Rhodes told him
she knew Defendant had opened several cards. Defendant
asserts that a demand must be made upon the party who is
claimed to owe repayment, and no demand was made. He
asserts that but for counsel’s deficiency, the outcome of the trial
would be different.
Though Defendant’s argument is unclear, it appears that
Defendant is arguing that counsel was ineffective for failing to
object to criminal charges being brought against him for a case
that was only a civil matter, or that counsel was ineffective for
failing to argue that Ms. Rhodes knew about the credit card
applications and ratified the applications by using the credit
cards, which would demonstrate to the jury that her case was a
civil financial dispute. To the extent Defendant may be arguing
that his counsel was ineffective for failing to object to criminal
charges being brought against him for a civil dispute,
Defendant’s claim is without merit. “Under Florida’s
constitution, the decision to charge and prosecute is an
executive responsibility, and the state attorney has complete
discretion in deciding whether and how to prosecute.” State v.
Bloom, 497 So. 2d 2, 3 (Fla. 1986) (citing Art. II, §3, Fla.
Const.). Accordingly, charging Defendant criminally was
within the State’s discretion, and any objection by counsel
would have been meritless. Counsel cannot be deemed
ineffective for failing to raise a meritless objection. Schoenwetter
v. State, 46 So. 3d 535, 546 (Fla. 2010).
To the extent Defendant argues that counsel was ineffective for
failing to argue that Ms. Rhodes knew about the credit card
applications and ratified the applications by using the credit
cards, which would demonstrate to the jury that her case was a
civil financial dispute, Defendant is not entitled to relief
because counsel was not deficient. Counsel did attempt to
demonstrate that Ms. Rhodes was aware of the credit cards and
applications and argue that the entire case was the result of a
financial dispute, or “lover’s spat” between Defendant and Ms.
Rhodes, who once had a personal relationship. During his
opening argument, counsel asserted that Ms. Rhodes met
Defendant on an online dating website, and she told Defendant
she was a single mother with financial problems, and
Defendant offered to help her consolidate the debt through
credit cards to address the financial issues. Counsel argued that
Ms. Rhodes agreed to apply for the credit cards with Defendant,

41

and she received copies of the credit cards and used them for
personal use. He argued that Defendant helped Ms. Rhodes
find a good deal on a used Mercedes, where Ms. Rhodes then
went to the dealership where she signed a large number of
documents for the purposes of obtaining a loan, and also
entered into a lease agreement for an apartment, knowing that
she was entering into a financial obligation at Defendant’s
suggestion.
Counsel then asserted that when Ms. Rhodes realized how
much debt she had incurred on the credit card, she contacted
the police, and Deputy Hugo Castillo went to speak with her.
Counsel argued that at that time, Ms. Rhodes told Deputy
Castillo about the credit cards she had applied for with
Defendant, that she had signed a stack of loan documents for a
car, and that she knew about the cards and the loan. However,
at that point, the State objected to counsel’s anticipated
argument that Deputy Castillo told Ms. Rhodes that it was a
civil matter and what she had told him was not criminal. The
State argued that Deputy Castillo would not be able to testify
regarding his opinion as to whether the instant case was civil or
criminal, and further argued that the case is clearly criminal as
Defendant was arrested. The objection was well taken, and
counsel instead argued that Ms. Rhodes was not satisfied with
the result of Deputy Castillo’s report, indicating that her claim
was a civil matter, so she waited and called the police again and
told them that she was not aware of the credit cards or the car
loan, and a criminal investigation began. Counsel pointed out
that by that time, the relationship between Ms. Rhodes and
Defendant was “on the outs” and Defendant was not visiting
anymore and was dating another woman, whom he married.
The record reflects that counsel’s cross-examination of Ms.
Rhodes was consistent with his opening argument. Ms. Rhodes
testified that she met Defendant online, that she met with
Deputy Castillo and told him that she had signed a car loan
agreement and that Defendant gave her credit cards, but after
speaking to Deputy Castillo, she understood that he was not
going to investigate the case. Ms. Rhodes testified that a few
days after meeting with Deputy Castillo, she contacted the
police again and spoke with a different deputy, this time telling
the deputy that she had not signed credit card applications or a
car loan, and her understanding was that a criminal
investigation would begin. Notably, Ms. Rhodes testified that
she was “looking for a man who will marry [her] and make a
family.” She admitted that she told Detective Bingham that she

42

knew Defendant had opened credit card accounts in her name
and that she had gone to Tampa to sign car loan documents.
Ms. Rhodes testified that she was also aware of American
Express and Chase credit cards with her name on it, and used
them for food and household needs. Ms. Rhodes testified that
she was aware that she had signed an apartment lease
agreement in her name, and that it was to her benefit to aid in
gaining custody of her child, and the plan was that she and
Defendant would both live there.
Further, during his cross-examination of Detective Bingham,
the detective testified that Ms. Rhodes had explained to him
that Defendant was going to help her with her financial issues,
and that she showed him credit card letters and statements. He
testified that based on his interview, he learned that none of the
bills were a surprise to Ms. Rhodes, that she knew about at least
three credit cards: Washington Mutual, American Express, and
Capital One, and had been offered assistance with her bills and
to obtain credit to be able to purchase groceries. He testified
that an American Express account was in Ms. Rhodes’s name.
He testified that two applications for a Discover credit card
were made, and the computer IP address used on the
application was never traced back to a computer in Defendant’s
possession, and no Discover card was issued.
Finally, counsel’s closing argument was consistent with his
defense that this case was a financial dispute between
Defendant and Ms. Rhodes, who once had a personal
relationship. He stated that Defendant’s relationship with Ms.
Gonzalez, whom he married, was different from his
relationship with Ms. Rhodes, a woman he met online and
“dated for a grand total of four months before she got the
message that it was over.” He highlighted that Ms. Rhodes was
a single mother, who testified that she was looking for a man to
support her financially, and took a very deliberate approach in
her effort to look for a man who would support her financially.
Counsel argued that none of the evidence suggested that
Defendant fooled Ms. Rhodes into providing her information,
and that she benefitted from having the credit cards, and
pointed out that Ms. Rhodes had equal access to the account
information. He argued that she was not forced or tricked into
leasing an apartment, Ms. Rhodes went to the leasing office
with Defendant voluntarily, and signed a lease agreement
without reading it. He argued that Ms. Rhodes used an
American Express card to pay for an AT&T phone that was

43

placed in her name, and she had access to those accounts as
well.
In light of the foregoing, it is clear that counsel’s defense was
that Defendant’s case was the result of a financial dispute
between Defendant and Ms. Rhodes, as Defendant’s claim
suggests. Accordingly, Defendant has failed to demonstrate
that his counsel was deficient. Further, Defendant was not
prejudiced because the jury convicted Defendant even after
hearing counsel’s defense that the case was a financial dispute
between the parties. This claim is denied.
Whether the prosecution could charge Jimenez with a crime arising from a civil
dispute is an issue of state law, and a state court’s determination of state law receives
deference in federal court. Machin, 758 F.2d at 1433. The information charged Jimenez with
a scheme to defraud. (Doc. 13-2 at 18) A plaintiff may sue in a civil action for a monetary
loss arising from a criminal charge for a scheme to defraud, and a criminal conviction may
estop a defendant from denying the fraudulent conduct in the civil action. Peterson v. Therma
Builders, Inc., 958 So. 2d 977, 979–80 (Fla. 2d DCA 2007) (citing § 775.089(8), Fla. Stat.). 3
The two are not mutually exclusive. Because the prosecution appropriately charged Jimenez
with a crime under these circumstances, trial counsel was not ineffective and the state court
did not unreasonably apply Strickland. Pinkney, 876 F.3d at 1297.
Also, trial counsel did present a defense at trial that the criminal charges amounted
to a civil dispute arising from a “lover’s spat.” In his opening statement, trial counsel told
the jury that Rhodes told Jimenez about her financial problems and Jimenez agreed to help.
(Doc. 13-3 at 197) Rhodes agreed to apply for the credit cards, used the credit cards for her
own personal expenses, signed documents to purchase the Mercedes Benz, and signed a

A plaintiff may demand treble damages, attorney’s fees, and costs in a civil action for theft
but must send to the defendant a written demand before filing the action. § 772.11(1), Fla. Stat. The
written demand requirement does not apply to a criminal action. § 772.11, Fla. Stat.
3

44

lease for an apartment. (Doc. 13-3 at 198) Rhodes contacted police only after realizing how
much debt she had incurred. (Doc. 13-3 at 198) When trial counsel attempted to tell the jury
that a police officer told Rhodes that her complaint amounted to a civil matter, the
prosecutor objected. (Doc. 13-3 at 200–01) Trial counsel told the jury instead that the
relationship between Rhodes and Jimenez had soured when Rhodes reported the crime to
police. (Doc. 13-3 at 201)
During cross-examination of Rhodes, trial counsel elicited testimony that supported
this defense. Rhodes admitted that she had incurred significant debt before meeting Jimenez
and was “looking for a man who [would] marry [her] and make a family.” (Doc. 13-3 at
271) She admitted that she told a detective that she knew about the credit card accounts in
her name, the car loan documents that she had signed, and the lease agreement that she had
signed for an apartment. (Doc. 13-3 at 272–80) Also, she admitted that she had used the
credit cards for her own personal expenses. (Doc. 13-3 at 276–77)
In closing argument, trial counsel presented argument consistent with the defense.
Trial counsel told the jury that Rhodes was “a woman that [Jimenez] dated — that he met
through Match.com and dated for a grand total of four months before she got the message
that it was all over.” (Doc. 13-3 at 513–14) Trial counsel pointed out that Rhodes “took a
very deliberate approach to this effort to look for a man to support her financially.” (Doc.
13-3 at 520) Trial counsel argued that Rhodes could equally access the account information
for the credit card accounts and knowingly signed the documents for the car loan and the
lease for the apartment. (Doc. 13-3 at 521–27)

45

Because trial counsel did present a defense at trial that the criminal charges
amounted to a civil dispute arising from a “lover’s spat” and the state court record refutes
Jimenez’s claim, the state court did not unreasonably deny the claim.
Ground Eight is DENIED.
Ground Nine
Jimenez asserts that his two convictions for criminal use of personal identification
violate double jeopardy. (Doc. 6 at 19–20) The Respondent asserts that the ground is
unexhausted and procedurally barred. (Doc. 13 at 14–15) Jimenez did not raise a double
jeopardy claim in either his brief on direct appeal (Doc. 13-3 at 627–58) or in his motion for
post-conviction relief. (Doc. 13-4 at 175–224) Jimenez raised the double jeopardy claim for
the first time in his brief on post-conviction appeal. (Doc. 13-4 at 549–51) Because a
defendant cannot raise a claim for the first time on post-conviction appeal in a Florida court,
Jimenez failed to exhaust his available state court remedies. Mendoza, 87 So. 3d at 660.
Harris, 709 F. App’x at 668.
If Jimenez returned to state court to exhaust the claim, the state court would deny
the claim as untimely, successive, and procedurally barred. Fla. R. Crim. P. 3.850(b), (c),
(h). Because Jimenez shows neither cause and actual prejudice nor a miscarriage of justice,
the claim is procedurally barred from federal review. Snowden, 135 F.3d at 736.
Ground Nine is DENIED.
Ground Ten
Jimenez alleges that “the State willfully deceived the court,” and, thereby,
committed fraud on the court by introducing into evidence records pursuant to the business
records exception, similar fact evidence, the bankruptcy records, and other evidence

46

concerning what he contends is a civil financial dispute. (Docs. 6 at 14–15 and 7 at 7–8) The
More specifically he alleges that “the State willfully deceived the Court and engaged in
conduct utterly inconsistent with orderly administration of justice. The admission of this
erroneous evidence violated Jimenez’s rights to due process and a fair trial. Jimenez’s
prosecution is unconstitutional.” (Doc. 7 at 7) Respondent asserts that the ground is
unexhausted and procedurally barred. (Doc. 13 at 8) Jimenez concedes that he did not raise
these claims in either his direct appeal or his motion for post-conviction relief. (Doc. 6 at
15) Jimenez raised the fraud on the court claim for the first time in his brief on postconviction appeal. (Doc.13-4, 551–56) Because a defendant cannot raise a claim for the first
time on post-conviction appeal in a Florida court, Jimenez failed to exhaust his available
state court remedies. Mendoza, 87 So. 3d at 660. Harris, 709 F. App’x at 668.
If Jimenez returned to state court to exhaust the claim, the state court would deny
the claim as untimely, successive, and procedurally barred. Fla. R. Crim. P. 3.850(b), (c),
(h). Because Jimenez shows neither cause and actual prejudice nor a miscarriage of justice,
the claim is procedurally barred from federal review. Snowden, 135 F.3d at 736.
Ground Ten is DENIED.
Accordingly, it is ORDERED that Jimenez’s amended petition (Doc. 6) is
DENIED. The Clerk is DIRECTED to enter a judgment against Jimenez and CLOSE this
case.
CERTIFICATE OF APPEALABILITY AND
LEAVE TO PROCEED IN FORMA PAUPERIS
Because Jimenez neither makes a substantial showing of the denial of a
constitutional right nor demonstrates that reasonable jurists would find debatable both the
merits of the underlying claims and the procedural issues that he seeks to raise, a certificate

47

of appealability and leave to appeal in forma pauperis are DENIED. 28 U.S.C. § 2253(c)(2).
Slack v. McDaniel, 529 U.S. 473, 478 (2000).
DONE AND ORDERED in Tampa, Florida on November 19, 2021.

48