Romero-Rodriguez v. Secretary, Department of Corrections et al (Pinellas County)

Filing 22

ORDER: Mr. Romero-Rodriguez's petition 1 is DENIED. A certificate of appealability and leave to appeal in forma pauperis are DENIED. The CLERK is directed to enter judgment against Mr. Romero-Rodriguez and to CLOSE this case. Signed by Judge William F. Jung on 6/5/2024. (MWC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOHN ROMERO-RODRIGUEZ,
Petitioner,
v.

Case No. 8:21-cv-1125-WFJ-AEP

SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.

/
ORDER

John Romero-Rodriguez, a Florida prisoner, timely filed a petition for writ of habeas
corpus under 28 U.S.C. § 2254. (Doc. 1). Respondent filed a response opposing the
petition. (Doc. 12). Mr. Romero-Rodriguez did not file a reply. Upon consideration, the
petition is DENIED.
I.

Background
This case arises from Mr. Romero-Rodriguez’s participation in a string of

residential burglaries in central Florida. The burglaries took place from 2009 to 2011 and
had several features in common. Among other similarities, all of the victims were of Indian
descent, with a “large majority” having the last name “Patel,” and the burglars typically
gained entry through rear sliding doors. (E.g., Doc. 12-2, Ex. 5, at 24-25; Doc. 12-2, Ex.
19, at 1540-51).
A break in the case came on March 31, 2011. That morning, John Parker was
walking his dog in Palm Harbor. (Id., Ex. 12, at 643). He passed the house of his neighbor,
1

Jayanti Patel. (Id. at 648). Mr. Parker saw three men carrying a safe out of the house and
placing it in the back of a silver BMW with a missing gas cap. (Id. at 649, 653, 752). After
the men drove off, Mr. Parker wrote down the license plate number and called 911. (Id. at
651-53). Law enforcement determined that the plate belonged to a silver BMW registered
to Mr. Romero-Rodriguez’s codefendant, Luis Rodriguez-Gomez. (Id. at 802). The
discovery of this car was significant. Two weeks earlier, surveillance footage from New
Tampa had captured a silver BMW with a missing gas cap in the vicinity of two burglarized
houses. (Id., Ex. 5, at 26-27). Both were owned by persons of Indian descent. (Id.)
After obtaining a court order, law enforcement placed a GPS tracker on the silver
BMW. (Id., Ex. 19, at 1474). On April 8, 2011, police followed the car as it traveled from
Tampa to Ocala to Gainesville. (Id., Ex. 13, at 841-45, 869-72). Along the way, the car
stopped at several residences owned by persons with the last name “Patel.” (E.g., id., Ex.
14, at 893-94). Ultimately, law enforcement observed the car park in front of a house in
Gainesville for several minutes. (Id., Ex. 13, at 843-44). After the car drove off, an officer
walked to the back of the house and saw that “one side” of a “glass French door[]” had
been “shattered, leaving a hole in it big enough for someone [to] have gone through.” (Id.
at 845). The house “belonged to a family [with] the last name of Patel.” (Id., Ex. 5, at 78).
Shortly after this burglary, law enforcement stopped the silver BMW and arrested
its occupants—Mr. Romero-Rodriguez, Mr. Rodriguez-Gomez, and codefendant David
Marin-Monroy. (Id., Ex. 14, at 874, 876-77). Inside the vehicle were two GPS units, gold
jewelry, several window punches (a device used to break glass), gloves, a screwdriver, a
pry bar, and a list of Gainesville and Ocala addresses of people with the last name “Patel.”
2

(Id. at 918, 929-46; id., Ex. 18, at 1302; id., Ex. 19, at 1587, 1596). One of the GPS units
was set to the address of the Gainesville house that had just been burglarized. (Id., Ex. 14,
at 932). Officers subsequently executed a search warrant at Mr. Marin-Monroy’s residence.
(Id., Ex. 16, at 1151-52). There, they found a list of addresses for several recent burglary
victims with the surname “Patel.” (Id. at 1152-53; id., Ex. 19, at 1521-22, 1550-51, 159697).
Mr. Romero-Rodriguez was ultimately charged with racketeering, conspiracy to
commit racketeering, burglary of an unoccupied dwelling, and grand theft. (Id., Ex. 7).
Following a jury trial, he was found guilty of all charges except grand theft, of which he
was acquitted. (Id., Ex. 24). Mr. Romero-Rodriguez received a total sentence of thirty years
in prison. (Id., Ex. 25, at 67). After an unsuccessful direct appeal, Romero-Rodriguez v.
State, 185 So. 3d 1245 (Fla. 2d DCA 2016), he sought postconviction relief under Florida
Rule of Criminal Procedure 3.850, (Doc. 12-3, Ex. 32). The postconviction court
summarily denied one claim and granted an evidentiary hearing on the other. (Doc. 12-3,
Ex. 36). After the hearing, the court denied the remaining claim in a written order. (Id.,
Exs. 37, 38). The appellate court affirmed the denial of relief without opinion. RomeroRodriguez v. State, 311 So. 3d 13 (Fla. 2d DCA 2021). This federal habeas petition
followed. (Doc. 1).
II.

Standards of Review
A.

AEDPA

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this
proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief
3

can be granted only if a petitioner is in custody “in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254(d) provides that federal
habeas relief cannot be granted on a claim adjudicated on the merits in state court unless
the state court’s adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.
A decision is “contrary to” clearly established federal law “if the state court arrives
at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if
the state court decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A decision involves
an “unreasonable application” of clearly established federal law “if the state court identifies
the correct governing legal principle from [the Supreme] Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.” Id.
AEDPA was meant “to prevent federal habeas ‘retrials’ and to ensure that statecourt convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S.
685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state court’s application
of clearly established federal law is objectively unreasonable, and . . . an unreasonable
application is different from an incorrect one.” Id. at 694; see also Harrington v. Richter,
562 U.S. 86, 103 (2011) (“As a condition for obtaining habeas corpus from a federal court,
a state prisoner must show that the state court’s ruling on the claim being presented in
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federal court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.”).
The state appellate court affirmed Mr. Romero-Rodriguez’s convictions and
sentences, as well as the denial of postconviction relief, without discussion. These
decisions warrant deference under § 2254(d)(1) because “the summary nature of a state
court’s decision does not lessen the deference that it is due.” Wright v. Moore, 278 F.3d
1245, 1254 (11th Cir. 2002). When a state appellate court issues a silent affirmance, “the
federal court should ‘look through’ the unexplained decision to the last related state-court
decision that does provide a relevant rationale” and “presume that the unexplained decision
adopted the same reasoning.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
B.

Ineffective Assistance of Counsel

Mr. Romero-Rodriguez alleges ineffective assistance of trial counsel. Ineffectiveassistance-of-counsel claims are analyzed under the test established in Strickland v.
Washington, 466 U.S. 668 (1984). Strickland requires a showing of deficient performance
by counsel and resulting prejudice. Id. at 687. Deficient performance is established if, “in
light of all the circumstances, the identified acts or omissions [of counsel] were outside the
wide range of professionally competent assistance.” Id. at 690. However, “counsel is
strongly presumed to have rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment.” Id.
Mr. Romero-Rodriguez must show that counsel’s alleged error prejudiced the
defense because “[a]n error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the error had no effect on
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the judgment.” Id. at 691. To demonstrate prejudice, Mr. Romero-Rodriguez must show “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. at 694.
Obtaining relief on a claim of ineffective assistance of counsel is difficult on federal
habeas review because “[t]he standards created by Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem, review is doubly so.” Richter, 562 U.S. at
105 (internal quotation and citations omitted); see also Pooler v. Sec’y, Dep’t of Corr., 702
F.3d 1252, 1270 (11th Cir. 2012) (“Because we must view Pooler’s ineffective counsel
claim—which is governed by the deferential Strickland test—through the lens of AEDPA
deference, the resulting standard of review is doubly deferential.”). “The question [on
federal habeas review of an ineffective-assistance claim] ‘is not whether a federal court
believes the state court’s determination’ under the Strickland standard ‘was incorrect but
whether that determination was unreasonable—a substantially higher threshold.’” Knowles
v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473
(2007)).
III.

Discussion
A.

Ground One—Denial of Motion to Suppress

Mr. Romero-Rodriguez contends that the trial court violated his constitutional rights
by denying his motion to suppress all evidence obtained as a result of the April 8, 2011
traffic stop in Gainesville. (Doc. 8 at 7-9). In his motion to suppress, Mr. RomeroRodriguez primarily argued that law enforcement lacked probable cause to stop or arrest
6

him. (Doc. 12-2, Exs. 3, 4). Following an evidentiary hearing, the trial court denied the
motion to suppress in a written order. (Id., Exs. 5, 6). The order did not contain any factual
findings or legal conclusions. (Id., Ex. 6). On direct appeal, Mr. Romero-Rodriguez
challenged the denial of the suppression motion, arguing that law enforcement lacked
probable cause to believe “a felony had occurred” before the stop. (Doc. 12-3, Ex. 27, at
18). The appellate court affirmed without opinion. Romero-Rodriguez v. State, 185 So. 3d
1245 (Fla. 2d DCA 2016). In his federal habeas petition, Mr. Romero-Rodriguez reiterates
his argument that the stop and arrest were illegal because law enforcement lacked probable
cause to believe he had committed a crime. (Doc. 8 at 8-9).
No state court explained the denial of the motion to suppress. Thus, Mr. RomeroRodriguez must show that “there was no reasonable basis for the state court to deny relief.”
Richter, 562 U.S. at 98; see also Tarleton v. Sec’y, Fla. Dep’t of Corr., 5 F.4th 1278, 1291
(11th Cir. 2021) (“[Petitioner’s] Confrontation Clause claim was rejected on the merits by
the First District Court of Appeal, and there has been no statement of reasons by any state
court for rejecting the claim. Under Richter, [petitioner’s] burden is to demonstrate that
there was no reasonable basis for the decision of the First District Court of Appeal to deny
his claim.”). He cannot meet his burden. 1

Respondent argues (Doc. 21) that Ground One is barred by Stone v. Powell, which held that “where the
State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner
may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional
search or seizure was introduced at his trial.” 428 U.S. 465, 494 (1976). Because the Court concludes that
AEDPA deference applies to the denial of the motion to suppress, it need not consider whether Stone bars
this claim. See Mays v. Davenport, 560 F. App’x 958, 962 (11th Cir. 2014) (declining to address whether
habeas petition was “timely,” or whether “illegal arrest claim” was “precluded by Stone,” because petition
was “due to be denied on the merits”). In addition, the Court rejects Respondent’s argument that Ground
One is unexhausted. (Doc. 12 at 9-11). Mr. Romero-Rodriguez raised his claim at both the trial and appellate

1

7

Before the April 8, 2011 traffic stop, law enforcement had been investigating a
string of residential burglaries targeting persons of Indian descent in central Florida. As the
lead detective explained at the suppression hearing, the burglaries followed a “set pattern”:
the victims were of Indian descent, with most having the last name “Patel,” and the burglars
usually gained entry through rear sliding doors. (Doc. 12-2, Ex. 5, at 24-25). A burglary
fitting that pattern took place in Palm Harbor on March 31, 2011. Using a license plate
number provided by a witness, law enforcement located the burglars’ car—a silver BMW
with a missing gas cap. (Id. at 25-26, 28). Two weeks earlier, a car matching that
description had been captured on surveillance footage in the vicinity of two additional
burglaries in New Tampa, both of which involved victims of Indian descent. (Id. at 26-27).
Law enforcement ultimately obtained a court order allowing it to place a GPS tracking
device on the silver BMW. (Id. at 28-29).
On the day of the traffic stop, law enforcement followed the silver BMW as it
traveled from Tampa to Ocala to Gainesville. (Id. at 40-41). Along the way, the car parked
in front of several houses occupied by persons with the last name “Patel.” (E.g., id. at 5051). The last stop was a house in Gainesville that “belonged to a family [with] the last name
of Patel.” (Id. at 78). After the car drove off, Officer Thomas McCasland checked the back
of the house and discovered that the “glass” on the French door “had been shattered, leaving
a significant hole in the door.” (Id. at 81). Officer McCasland immediately advised other
officers that “there was a break [in] and it appeared to be a burglary.” (Id. at 81-82). Based

levels, and he cited the federal constitution in both his motion to suppress and his opening brief on appeal.
(Doc. 12-2, Ex. 3, at 1; Doc. 12-3, Ex. 27, at 14).

8

on that information, law enforcement stopped the silver BMW and arrested its occupants,
including Mr. Romero-Rodriguez. (Id. at 93).
A reasonable jurist could conclude that law enforcement had probable cause to
believe Mr. Romero-Rodriguez had committed burglary. The Fourth Amendment protects
“the right to be free from arrest without probable cause.” Barnett v. MacArthur, 956 F.3d
1291, 1296 (11th Cir. 2020). “Probable cause exists where the facts within the collective
knowledge of law enforcement officials, derived from reasonably trustworthy information,
are sufficient to cause a person of reasonable caution to believe that a criminal offense has
been or is being committed.” Gates v. Khokhar, 884 F.3d 1290, 1298 (11th Cir. 2018).
Probable cause requires only “a probability or substantial chance of criminal activity, not
an actual showing of such activity.” Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983). “[T]he
probable-cause standard is a practical, nontechnical conception that deals with the factual
and practical considerations of everyday life on which reasonable and prudent [people],
not legal technicians, act.” Davis v. City of Apopka, 78 F.4th 1326, 1335 (11th Cir. 2023).
Taken as a whole, the information available to law enforcement was “sufficient to
cause a person of reasonable caution to believe that” Mr. Romero-Rodriguez had
committed burglary. 2 Gates, 884 F.3d at 1298. The silver BMW had been linked to several
residential burglaries in central Florida involving victims of Indian descent. The suspects
in those burglaries typically gained entry through rear sliding doors. The day of the traffic

Because the officers “maintained at least a minimal level of communication during their investigation,”
the Court “look[s] to the collective knowledge of” the officers in determining “whether [the] seizure was
justified.” United States v. Andres, 960 F.3d 1310, 1317 (11th Cir. 2020).
2

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stop, law enforcement followed the car as it stopped at multiple houses occupied by people
with the last name “Patel.” Shortly before the stop, the car pulled in front of a house owned
by a family with the surname “Patel.” After parking for several minutes, the car drove off.
Law enforcement quickly discovered signs of forced entry consistent with the earlier
burglaries—specifically, a “shattered” rear French door. (Doc. 12-2, Ex. 5, at 81). This
“physical indication[] of forced entry”—combined with the silver BMW’s suspicious
activity earlier that day and its connection to other burglaries involving victims of Indian
descent—could lead “a police officer to a reasonable belief that a burglary . . . had recently
occurred.” State v. Yee, 177 So. 3d 72, 76 (Fla. 3d DCA 2015); see also In re Sealed Case
96-3167, 153 F.3d 759, 764 (D.C. Cir. 1998) (“A forced door or window is a commonly
recognized element of probable cause in a burglary case.” (collecting cases)); Anderson v.
City of Groveland, No. 5:15-cv-26-JSM-PRL, 2016 WL 881148, at *6 (M.D. Fla. Mar. 8,
2016) (noting that probable cause “to believe a burglary is being committed” may be based
on “physical indication of forced entry, i.e., an open door, broken window, [or] tool marks
around a door or window”).
Because a reasonable jurist could conclude that law enforcement had probable cause
to arrest Mr. Romero-Rodriguez for burglary, the state court did not act unreasonably in
denying his motion to suppress. Thus, Ground One is denied.
B.

Ground Two—Ineffective Assistance During Plea Negotiations

Mr. Romero-Rodriguez contends that trial counsel was ineffective for failing to
“adequately represent [him] during plea negotiations.” (Doc. 8 at 9). Mr. RomeroRodriguez allegedly “spoke little to zero English” at the time of his criminal case. (Doc. 1
10

at 9). According to him, the prosecution initially made a “plea offer of six years.” (Id.) Yet
counsel allegedly failed “to bring a certified Spanish translator to assist [Mr. RomeroRodriguez] in making the decision about the plea offer.” (Id.) As a result, he “was not able
to accept the six[-]year offer.” (Doc. 8 at 12). Mr. Romero-Rodriguez also alleges that,
“[i]mmediately prior to trial, the State made a second offer” of an “open plea . . . with a
cap of ten years.” (Id.) Once again, Mr. Romero-Rodriguez was allegedly denied “the
chance to make an informed decision on the offer,” apparently because a Spanish
interpreter was not present during discussions with counsel. 3 (Id.) Furthermore, “[d]uring
both meetings where offers were disclosed,” counsel allegedly failed to “make [Mr.
Romero-Rodriguez] aware of the maximum sentence he faced.” (Id.)
The postconviction court held an evidentiary hearing on this claim. Trial counsel
testified that he spoke to Mr. Romero-Rodriguez both “with interpreters” and “without
interpreters.” (Doc. 12-3, Ex. 37, at 37). Counsel had a “specific recollection” of Mr.
Romero-Rodriguez “telling [him] on several occasions [that] he did not need an
interpreter.” (Id.) On one occasion, for example, counsel told Mr. Romero-Rodriguez that
he “[didn’t] have an interpreter,” to which Mr. Romero-Rodriguez responded, “[I]t’s okay,
I understand.” (Id. at 39). In short, counsel could not recall any “language barriers” between
him and his client. (Id. at 57).
Counsel also testified that the prosecution “never made a firm plea offer,” although
it did propose a sentence “around the bottom of the guidelines”—that is, roughly six-and-

3

A Spanish interpreter translated for Mr. Romero-Rodriguez during the trial. (Doc. 12-2, Exs. 8-23).

11

a-half years in prison. (Id. at 39-40). According to counsel, the prosecution “wanted [Mr.
Romero-Rodriguez] to cooperate” as part of any plea deal, which meant “testify[ing]
against” his codefendants. (Id. at 39). Counsel and Mr. Romero-Rodriguez “discuss[ed]
what he was looking at and what the [] prosecutor wanted.” (Id. at 63). But, counsel
explained, Mr. Romero-Rodriguez did not wish to cooperate “at any time,” nor would he
“admit to something [he claimed he] didn’t do.” (Id. at 39, 44; see also id. at 68). Counsel
also stated that, on the eve of trial, the prosecution indicated that Mr. Romero-Rodriguez
“could plea[d] open” with a “cap at 10 [years].” (Id. at 40). Counsel testified that he
“believed” a Spanish interpreter was present while he discussed this offer with Mr.
Romero-Rodriguez, who ultimately rejected it. (Id. at 41, 65).
Finally, counsel stated that he was “able to have an intelligent discussion” with Mr.
Romero-Rodriguez about “the maximum penalties for the charges.” (Id. at 38). In
particular, counsel informed Mr. Romero-Rodriguez that he faced a maximum of thirty
years in prison for racketeering, thirty years in prison for conspiracy to commit
racketeering, and fifteen years in prison for burglary. (Id. at 38-39).
Mr. Romero-Rodriguez offered a different version of events at the evidentiary
hearing. He testified that (1) he repeatedly told counsel he did not “understand” him and
“need[ed]” an interpreter, (2) he never discussed any plea offers with counsel, and (3) he
did not know the statutory maximum penalties he faced “if [he] were found guilty.” (Id. at
15-20).
The postconviction court ultimately rejected Mr. Romero-Rodriguez’s ineffectiveassistance claim, finding no “deficient performance or prejudice.” (Id., Ex. 38, at 7). The
12

court began by deeming “credible the testimony of [trial counsel] based on his demeanor
in the courtroom.” (Id.) By contrast, the court rejected Mr. Romero-Rodriguez’s testimony
as “incredible” “based on [his] demeanor and the content of his” statements. (Id.) For
example, the court noted that Mr. Romero-Rodriguez’s “testimony at the evidentiary
hearing was inconsistent with the sworn allegations in his motion.” (Id.) Specifically, Mr.
Romero-Rodriguez “alleged in his motion that [counsel] relayed the initial offer during one
of their meetings, but an interpreter was not present so he did not want to accept it without
fully understanding it.” (Id.) “At the evidentiary hearing,” however, he “testified he never
discussed an offer with” counsel. (Id.)
Based on these credibility determinations, the court found that “counsel discussed
with [Mr. Romero-Rodriguez] the State’s initial offer of a bottom-of-the-guidelines
sentence and the State’s second offer [] of an open plea with a ten-year cap.” (Id.) The court
also determined that counsel “advised [Mr. Romero-Rodriguez] of the maximum penalty
he faced.” (Id. at 8). Additionally, the court found that counsel was “able to communicate
with [Mr. Romero-Rodriguez] in English without interpreters.” (Id.) Thus, the court
concluded, “counsel effectively communicated the State’s offers to [Mr. RomeroRodriguez] and advised [him] of the maximum sentence he faced.” (Id.) As a result, Mr.
Romero-Rodriguez failed to “establish[] deficient performance.” (Id.)
The court also found that Mr. Romero-Rodriguez “ha[d] not established prejudice.”
(Id.) It based that conclusion on counsel’s testimony that Mr. Romero-Rodriguez “did not
want to enter a plea because he did not commit the crimes charged and because he did not
want to cooperate with the State.” (Id.)
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The rejection of this claim was reasonable. As an initial matter, the court credited
counsel’s version of events and declined to give any weight to Mr. Romero-Rodriguez’s
testimony. “Determining the credibility of witnesses is the province and function of the
state courts, not a federal court engaging in habeas review.” Consalvo v. Sec’y for Dep’t of
Corr., 664 F.3d 842, 845 (11th Cir. 2011). Mr. Romero-Rodriguez has not shown by “clear
and convincing evidence” that the court’s credibility determinations were erroneous. 28
U.S.C. § 2254(e)(1). To the contrary, the court accurately summarized the testimony from
the evidentiary hearing and carefully explained the weight it gave to each witness’s
statements. Thus, its credibility determinations are entitled to deference. See Nejad v. Att’y
Gen., State of Ga., 830 F.3d 1280, 1292 (11th Cir. 2016) (“Federal habeas courts have no
license to redetermine credibility of witnesses whose demeanor has been observed by the
state trial court, but not by them.”).
Having credited counsel’s testimony, the postconviction court reasonably rejected
the ineffective-assistance claim. “[C]laims of ineffective assistance of counsel in the plea
bargain context are governed by the two-part test set forth in Strickland.” Missouri v. Frye,
566 U.S. 134, 140 (2012). Counsel’s performance “is deficient only if it falls below the
wide range of competence demanded of lawyers in criminal cases.” Osley v. United States,
751 F.3d 1214, 1222 (11th Cir. 2014). To establish prejudice in the context of a failed plea
bargain, the petitioner must show that, “but for the ineffective assistance of counsel, a
reasonable probability existed that: (1) the plea offer would have been presented to the
court (i.e. the [petitioner] would have accepted the plea and the prosecution would not have
withdrawn it in light of intervening circumstances); (2) the court would have accepted its
14

terms; and (3) under the offer’s terms, the conviction or sentence, or both, would have been
less severe than under the judgment and sentence that were, in fact, imposed.” Carmichael
v. United States, 966 F.3d 1250, 1259 (11th Cir. 2020).
The postconviction court reasonably concluded that counsel did not render
ineffective assistance. Counsel testified that he discussed the plea offers and the maximum
penalty with Mr. Romero-Rodriguez. (Doc. 12-3, Ex. 37, at 38-49, 41, 63). Counsel also
stated that he could not recall any “language barriers” between him and his client. (Id. at
57). Indeed, he specifically recalled Romero-Rodriguez “telling [him] on several occasions
[that] he did not need an interpreter.” (Id. at 37). Based on this testimony, the
postconviction court found that “counsel effectively communicated the State’s offers to
[Mr. Romero-Rodriguez] and advised [him] of the maximum sentence he faced.” (Id., Ex.
38, at 8). In these circumstances, “[r]easonable jurists could agree” that counsel’s
performance “was within the range of competent representation.” Pineda v. Warden,
Calhoun State Prison, 802 F.3d 1198, 1203 (11th Cir. 2015).
The postconviction court likewise acted reasonably in finding no prejudice. As
noted above, prejudice requires a showing that, but for counsel’s allegedly deficient
performance, Mr. Romero-Rodriguez “would have accepted a guilty plea and would not
have insisted on going to trial.” Rosin v. United States, 786 F.3d 873, 878 (11th Cir. 2015).
Here, counsel testified that the prosecution “wanted [Mr. Romero-Rodriguez] to
cooperate” as part of any plea deal, but Mr. Romero-Rodriguez did not wish to cooperate
“at any time,” nor would he “admit to something [he claimed he] didn’t do.” (Doc. 12-3,
Ex. 37, at 39, 44; see also Doc. 12-3, Ex. 37, at 68). Based on this testimony, the
15

postconviction court found that Mr. Romero-Rodriguez was not prejudiced because,
regardless of counsel’s performance, he would not have accepted a plea deal. (Id., Ex. 38,
at 8). That conclusion was reasonable. See Osley v. United States, 751 F.3d 1214, 1224
(11th Cir. 2014) (“While [defendant’s] denial of guilt surely is not dispositive on the
question of whether he would have accepted the government’s plea offer, it is nonetheless
a relevant consideration.”); Castillo v. Dixon, No. 20-61958-CIV, 2023 WL 6376739, at
*5 (S.D. Fla. Aug. 24, 2023) (“[T]he record supports the court’s conclusion that Petitioner
suffered no prejudice, as he would not have accepted the plea agreement requiring
cooperation even had he been fully informed.”), adopted by 2023 WL 6376505 (S.D. Fla.
Sept. 30, 2023); Adams v. United States, No. 5:20-cv-08008-RDP, 2023 WL 2543082, at
*3 (N.D. Ala. Mar. 16, 2023) (“Because any plea offer would have required Petitioner’s
cooperation, and because he adamantly refused to cooperate from the early stages of the
case, Petitioner cannot show that he was prejudiced by his counsel’s alleged failure to
negotiate or present him with a plea.”).
For all these reasons, Ground Two is denied.
C.

Ground Three—Ineffective Assistance Concerning Motion to Sever

Lastly, Mr. Romero-Rodriguez contends that trial counsel was ineffective for
“failing to file a motion to sever his case from his codefendants in a timely and effective
manner.” (Doc. 1 at 12). The day before trial began, counsel received an English translation
of a post-arrest interview with Mr. Rodriguez-Gomez—one of Mr. Romero-Rodriguez’s
codefendants. (Id.; see also Doc. 12-2, Ex. 8, at 8). During the interview, Mr. RodriguezGomez told law enforcement that Mr. Romero-Rodriguez “was not with him” during the
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other burglaries. (Doc. 1 at 12). In other words, according to this statement, Mr. RomeroRodriguez’s presence in Gainesville on April 8, 2011, was “a one[-]time thing.” (Doc. 122, Ex. 8, at 6). On the first day of trial, counsel for Mr. Romero-Rodriguez moved to sever
the case, arguing that he would not be able to “use” the codefendant’s exculpatory
statement at a joint trial. (Id. at 7). The court rejected the request for severance, finding an
insufficient “basis at this time to grant the motion.” (Id. at 11).
Counsel renewed the motion to sever at the conclusion of the State’s case. (Id., Ex.
21, at 1711-12). He explained that, although he wished to call Mr. Rodriguez-Gomez “to
the stand,” he “believe[d]” Mr. Rodriguez-Gomez would refuse to testify. (Id. at 1712).
Counsel therefore sought to “preserve the fact that had this case been severed I would have
been able to subpoena [Mr. Rodriguez-Gomez], but I cannot compel him to testify against
himself.” (Id.) The court denied the renewed motion, explaining that it would “not sever[]
the counts.” (Id.)
In his federal habeas petition, Mr. Romero-Rodriguez argues that counsel “should
have [filed] a motion to sever long before trial so the exculpatory evidence could have been
admitted.” (Doc. 1 at 13). He contends that severance was necessary because “the only way
to question Mr. Rodriguez-Gomez about his prior statement would be to subpoena him as
a witness and call him during the [d]efense’s case” at a separate trial for Mr. RomeroRodriguez. (Id.)
The postconviction court rejected this claim, finding that Mr. Romero-Rodriguez
“failed to prove that defense counsel acted deficiently or that he was prejudiced.” (Doc.
12-3, Ex. 36, at 9). The court explained that counsel “did move to sever [Mr. Romero17

Rodriguez’s] case from [Mr.] Rodriguez-Gomez’s case and later renewed his request, and
the record reflect[ed] that both requests were denied by the trial court due to an insufficient
basis.” (Id.)
The postconviction court reasonably rejected this claim for lack of prejudice. 4 To
show prejudice in this context, Mr. Romero-Rodriguez must establish a reasonable
probability that a motion to sever would have been granted. See Delva v. United States,
851 F. App’x 148, 153 (11th Cir. 2021) (finding no prejudice from failure to seek severance
because there was no “reasonable probability” that “a motion to sever [would] have
succeeded”). “To obtain a severed trial based on a defendant’s desire to offer a
codefendant’s potentially exculpatory testimony, the defendant must show: (1) a bona fide
need for the testimony, (2) the substance of the testimony, (3) its exculpatory nature and
effect, and (4) that the codefendant will in fact testify if the cases are severed.” Daniels v.
State, 634 So. 2d 187, 192 (Fla. 3d DCA 1994).
Mr. Romero-Rodriguez fails to establish a reasonable probability that a “timely and
effective” motion to sever would have succeeded. That is because he presents no evidence
that his codefendant—Mr. Rodriguez-Gomez—would have been willing to “testify if the
cases [had been] severed.” Id. Mr. Rodriguez-Gomez’s post-arrest statement was clearly
self-incriminating; it contained an admission that he had participated in several burglaries.
Thus, had he been called to testify at a separate trial, Mr. Rodriguez-Gomez could have

Because the postconviction court reasonably found no prejudice, this Court need not address Strickland’s
performance prong. See Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (“[A] court need not
address the performance prong of [Strickland] if the defendant cannot meet the prejudice prong, or vice
versa.”).

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invoked his Fifth Amendment right against self-incrimination. See United States v. Ahmed,
73 F.4th 1363, 1380 (11th Cir. 2023) (noting that “[a] witness properly invokes [the Fifth
Amendment] privilege when reasonably apprehend[ing] a risk of self-incrimination”
(internal quotation marks and citation omitted)). There is simply no evidence that Mr.
Rodriguez-Gomez would have been willing to waive that privilege at a separate trial. Cf.
Taylor v. Singletary, 122 F.3d 1390, 1393 (11th Cir. 1997) (“[Petitioner] clearly stated his
intention and desire to call Ortiz as a defense witness, and Ortiz clearly indicated his
willingness, through a signed affidavit and otherwise, to provide exculpatory evidence on
[Petitioner’s] behalf after the conclusion of his own trial.”). And without such evidence,
there is no basis to conclude that a motion to sever would have succeeded. 5 See United
States v. Duzac, 622 F.2d 911, 912 (5th Cir. 1980) (holding that trial court properly denied
motion to sever where defendant alleged only that codefendant “might have elected to
testify” at separate trial).
To be sure, Mr. Romero-Rodriguez had “a Sixth Amendment right to compulsory
process to obtain favorable testimony.” United States v. King, 623 F. App’x 962, 967 (11th
Cir. 2015). But his codefendant’s “valid assertion of [his] Fifth Amendment rights” would
have “justifie[d] a refusal to testify despite [Mr. Romero-Rodriguez’s] Sixth Amendment
rights.” Id. (internal quotation marks and citation omitted); see also Martin v. Sec’y, Fla.
Dep’t of Corr., No. 2:11-cv-639-SPC-CM, 2014 WL 5018643, at *9 (M.D. Fla. Oct. 7,
Even if Mr. Rodriguez-Gomez had been tried first, “he would still [have been] entitled to invoke his Fifth
Amendment privilege if he were called to testify at [Mr. Romero-Rodriguez’s] subsequent trial.” United
States v. Triumph Cap. Grp., Inc., 260 F. Supp. 2d 432, 443 (D. Conn. 2002). “This would be particularly
true if [Mr. Rodriguez-Gomez] were convicted in a[n] earlier trial and had a motion or appeal pending that
challenged his conviction and could result in a new trial.” Id.
5

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2014) (“[T]he Sixth Amendment’s right of compulsory process must generally give way
to a witness’[s] Fifth Amendment privilege against self-incrimination.”).
In short, Mr. Romero-Rodriguez fails to demonstrate a reasonable probability that a
motion to sever would have been granted. Thus, he cannot show prejudice from counsel’s
handling of the severance issue, and Ground Three is denied.
IV.

Conclusion
Accordingly, the Court ORDERS:
1. Mr. Romero-Rodriguez’s petition (Doc. 1) is DENIED.
2. The CLERK is directed to enter judgment against Mr. Romero-Rodriguez and to
CLOSE this case.
3. Mr. Romero-Rodriguez is not entitled to a certificate of appealability. A prisoner
seeking a writ of habeas corpus has no absolute entitlement to appeal a district
court’s denial of his petition. 28 U.S.C. § 2253(c)(1). “A certificate of appealability
may issue . . . only if the applicant has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). To obtain a certificate of
appealability, Mr. Romero-Rodriguez must show that reasonable jurists would find
debatable both the merits of the underlying claims and the procedural issues he seeks
to raise. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Mr. Romero-Rodriguez
has not made the requisite showing. Because Mr. Romero-Rodriguez is not entitled
to a certificate of appealability, he is not entitled to appeal in forma pauperis.
DONE AND ORDERED in Tampa, Florida, on June 5, 2024.

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