Tomanetz v. Secretary, Department of Corrections et al (Hernando County)

Filing 17

ORDER: Tomanetz's 1 Petition for Writ of Habeas Corpus is DENIED. A certificate of appealability and leave to appeal in forma pauperis are DENIED. The CLERK is directed to enter judgment against Tomanetz and in Respondent's favor and to CLOSE this case. Signed by Judge John L. Badalamenti on 1/3/2025. (MLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ROBERT LAMAR TOMANETZ,
Petitioner,
v.

Case No. 8:21-cv-2616-JLB-LSG

SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
_______________________________/
ORDER
Robert Lamar Tomanetz, a Florida state prisoner, timely filed a pro se
Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. (Doc. 1.) Having
considered the petition, (id.), the response in opposition, (Doc. 9), and
Tomanetz’s reply, (Doc. 12), the petition is denied.
I.

Background and Procedural History
A Florida state court jury convicted Tomanetz of sexual battery while

coercing the victim to submit by threatening to use force or violence likely to
cause serious personal injury (count one), aggravated battery (count two),
grand theft (count three), and false imprisonment (count four). (Doc. 9-1, Ex.
C.) The state trial court sentenced him to consecutive prison terms of 30 years
on count one, 15 years on count two, five years on count three, and five years
on count four. (Doc. 9-1, Ex. C-1.) The state appellate court per curiam
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affirmed the convictions and sentences. (Doc. 9-1, Ex. Q.) The state appellate
court also per curiam affirmed the denial of Tomanetz’s motion for
postconviction relief under Florida Rule of Criminal Procedure 3.850. (Doc. 91, Exs. V, W, AA, II.)
II.

Facts 1
On March 20, 2015, police responded to a call about the victim in this

case.

(Doc. 9-1, Ex. B, pp. 40-42.)

She was in a parking lot at the

Chassahowitzka Wildlife Management Area in Hernando County, Florida.
(Id., pp. 40-44.) The victim, who was wearing only a tank top, had scratches
on her body and was dirty and disoriented. (Id., pp. 44-45.) A nurse who
treated the victim at a hospital found dirt and grass in the victim’s mouth and
esophagus and observed injuries, including bruises on her face and body and
circular wounds on her chest and legs. (Id., pp. 52-53.)
The victim told the nurse that someone had taken her hostage, forced
her to take drugs, and raped and beat her. (Id., p. 54.) The victim also told a
second nurse that she was forced to perform oral sex, and that she was held
down and burned. (Id., pp. 113–16.)
The victim went on to describe a days-long episode of drug use involving
Tomanetz and several other people. During this period, Tomanetz accused the

1 This factual summary is based on the trial transcript.

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victim of stealing his child support card, food stamp card, and debit card. (Id.,
p. 160.) He became enraged and threatened to kill the victim. (Id., pp. 152-53,
161–63.) At one point, Tomanetz tied the victim to a chair and tried to force
her to smoke meth. (Id., pp. 180-81.) When she could not inhale the smoke,
Tomanetz burned her with a cigarette and a meth pipe. (Id.)
At some point, the victim was placed in the trunk of her car while
Tomanetz screamed that she was a liar. (Id., pp. 170-71.) After Tomanetz
started driving the vehicle, the victim managed to pull the emergency trunk
release. (Id., p. 172.) Tomanetz pulled over, placed the victim in the passenger
seat, and told her that he did not want to kill her but that he would have to
because she kept lying. (Id., p. 173.) Tomanetz yelled at her and repeatedly
punched the side of her head. (Id., p. 174.) He ripped off her bra and wrapped
it around her neck. (Id.) Tomanetz made the victim perform oral sex on him
“over a period of time,” and whenever she stopped, he grabbed the bra around
her neck or hit her. (Id.)
After Tomanetz pulled over near a wooded area, he dragged the victim
out of the car by her hair, pushed her head into the side of the vehicle, and
urinated into her mouth. (Id., p. 176.) Tomanetz began to poke the victim with
a small knife while questioning her about his child support card. (Id., p. 175.)
When the victim responded that she did not know what he was talking about,

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Tomanetz told her that he did not want to have to kill her. (Id.) They went
into the woods as Tomanetz held a gun to the victim’s head. (Id., p. 176.)
At that point, the victim believed that she hallucinated about a SWAT
team and an alligator; she conceded that for a time, she did not know what was
real. (Id., pp. 176–77.) The victim recalled waking up in the woods and
walking up a hill to the road where she was found. (Id., pp. 181–82.) When
she testified at trial, the victim acknowledged that her memory was “fuzzy”
about the timing and sequence of events and that she hallucinated while in the
woods.

(Id., pp. 176, 205, 235.) But the victim was sure that Tomanetz

committed the acts that she described in her testimony. (Id., pp. 186, 205–06,
235.)
III.

Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

governs this proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir.
2009). Habeas relief under the AEDPA 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
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(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.
For purposes of § 2254(d)(1), 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). The
phrase “clearly established Federal law” encompasses the holdings only of the
United States Supreme Court “as of the time of the relevant state-court
decision.” Id. at 412. 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.
The AEDPA was meant “to prevent federal habeas ‘retrials’ and to
ensure that state-court convictions are given effect to the extent possible under
law.” Bell v. Cone, 535 U.S. 685, 693 (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. As a result, to obtain relief under the AEDPA,
“a state prisoner must show that the state court’s ruling on the claim being
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presented in federal court was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011);
Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (stating that “[t]he state court’s
application of clearly established federal law must be objectively unreasonable”
for a federal habeas petitioner to prevail and that the state court’s “clear error”
is insufficient).
IV.

Discussion
A.

Ground One

Tomanetz argues that the state trial court erred in denying his motion
for judgment of acquittal on the charge of sexual battery. Tomanetz contends
that the State’s evidence was insufficient to show the victim’s lack of consent
to the sexual activity.

He alleges that the victim’s admission to having

hallucinated around the time of the sexual battery undermined her credibility.
The Court construes Tomanetz’s claim as alleging a violation of the
Fourteenth Amendment’s Due Process Clause, as he argued on direct appeal.
(Doc. 9-1, Ex. O, pp. 6-7.) Whether the evidence was sufficient to support
Tomanetz’s sexual battery conviction is reviewed under the standard
articulated in Jackson v. Virginia, 443 U.S. 307 (1979). This standard asks
whether, after viewing the evidence in the light most favorable to the

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prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Id. at 319.
Tomanetz was charged under § 794.011(4)(b), Fla. Stat, with sexual
battery while coercing the victim to submit by threatening to use force or
violence likely to cause serious personal injury. (Doc. 9-1, Ex. A.) To convict
Tomanetz, the State had to prove five elements beyond a reasonable doubt: (1)
Tomanetz was 18 years of age or older; (2) the victim was 18 years of age or
older; (3) Tomanetz committed sexual battery on the victim; (4) the act of
sexual battery occurred without the victim’s consent; and (5) Tomanetz coerced
the victim to submit by threatening to use force or violence likely to cause
serious personal injury to the victim, and the victim reasonably believed that
Tomanetz had the present ability to execute the threat.

Fla. Stat.

§ 794.011(4)(b), (e)(2).
“Sexual battery” is defined in relevant part as the “oral . . . penetration
by, or union with, the sexual organ of another . . . .” Fla. Stat. § 794.011(1)(j).
“Serious personal injury” is defined as “great bodily harm or pain, permanent
disability, or permanent disfigurement.” Fla. Stat. § 794.011(1)(i).
Tomanetz has not shown that the evidence, taken in the light most
favorable to the State, was insufficient to satisfy due process.

The State

presented evidence that Tomanetz committed sexual battery on the victim
without her consent. The victim testified that Tomanetz forced her to perform
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oral sex on him over a period of time and that Tomanetz’s penis penetrated her
mouth. (Doc. 9-1, Ex. B, pp. 174-–5.) She stated that she did not consent to
this act. (Id., p. 185.) The victim also testified that before and during this
time, Tomanetz repeatedly punched and hit her, prevented her from stopping
by grabbing the bra he had put around her neck, and said he would have to kill
her because she was a liar. (Id., pp. 173–75.)
Thus, the State presented evidence that Tomanetz committed a sexual
battery without the victim’s consent. The State also presented evidence that
Tomanetz coerced her to submit by threatening to use force or violence likely
to cause serious personal injury, which threats the victim reasonably believed
Tomanetz could carry out. Tomanetz fails to show that no rational juror,
considering this evidence in the light most favorable to the State, could find
that the State proved the essential elements of the charged offense.

See

Jackson, 443 U.S. at 319.
While Tomanetz argues that the victim’s admission to hallucinating
shows that she was not credible, any question about the victim’s credibility was
for the jury. See Stillions v. State, 297 So. 3d 681, 685 (Fla. 1st DCA 2020)
(affirming the denial of a motion for judgment of acquittal and stating that
“resolution of this case requires a credibility determination. And a jury, not
the court, must make that determination”). The jury was free to credit the

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victim’s testimony that although she hallucinated, she was certain about
Tomanetz’s actions.
The state trial court’s task was only to decide whether the State’s
evidence established a prima facie case of sexual battery.

See State v.

Williams, 742 So. 2d 509, 511 (Fla. 1st DCA 1999) (“A motion for judgment of
acquittal is designed to challenge the legal sufficiency of the evidence. If the
State has presented competent evidence to establish every element of the
crime, then a judgment of acquittal is improper.”).
Moreover, in assessing the reasonableness of the state court’s decision,
this Court likewise looks to whether the State made a prima facie showing of
guilt and does not re-weigh the evidence. See Wilcox v. Ford, 813 F.2d 1140,
1143 (11th Cir. 1987) (“Faced with a record of historical facts that supports
conflicting inferences, [a federal habeas court] must presume that the jury
resolved such conflicts in favor of the prosecution, deferring to the jury’s
judgment as to the weight and credibility of the evidence. The simple fact that
the evidence gives some support to the defendant’s theory of innocence does
not warrant the grant of habeas relief.”) (citations omitted).
The evidence presented at trial, considered in the light most favorable to
the State, was sufficient to defeat Tomanetz’s motion for judgment of acquittal.
Tomanetz does not show that the state court’s rejection of his claim was

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contrary to or involved an unreasonable application of federal law, or was
based on an unreasonable factual determination.
In his reply, Tomanetz challenges the sufficiency of the evidence
supporting his other convictions. He did not raise these claims in his habeas
petition. The Court will not consider new claims raised for the first time in a
reply brief. See Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1342 (11th Cir.
2005) (“[A]rguments raised for the first time in a reply brief are not properly
before a reviewing court.” (citation omitted)). Tomanetz is not entitled to relief
on Ground One.
B.

Ground Two

Tomanetz contends that the prosecutor improperly revealed to the jury
that he was in custody at the county jail. He argues that the prosecutor’s
alleged misconduct violated his rights under the Fifth, Sixth, and Fourteenth
Amendments.
During her closing argument, the prosecutor acknowledged that several
of the State’s witnesses had engaged in illicit activity:
I mean, we have to concede, you know, these people are – are awful.
They have not – they obviously – Christine tells you, she’s in
prison. She’s obviously a felon. Mr. Tomanetz is a member of our
Hernando County Jail. You know, but that’s – it doesn’t matter
when you look at what the whole big picture is. Because when you
hang around bad people, you get bad witnesses. But they’re not
bad witnesses. They’re good witnesses because of what – their
corroboration in the whole thing.
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(Doc. 9-1, Ex. B, pp. 590–91.)
At a bench conference a short time later, the prosecutor said she
misspoke and meant to refer to a witness, Howard Price, who testified in his
jail uniform. (Id., pp. 435, 591–92.) The trial court stated that “it seemed
clear to the Court and I think most people in the courtroom that she misspoke.
She meant to say Mr. Price,” and noted that the prosecutor “was pointing to
the witness stand at the time. . .” (Id., pp. 592–93.) The prosecutor then told
the jury that she was talking about Howard Price when she pointed to the
witness stand and that she misspoke. (Id., p. 593.)
Tomanetz has not shown that the state appellate court’s rejection of his
prosecutorial misconduct claim was unreasonable.

“To find prosecutorial

misconduct, a two-pronged test must be met: (1) the remarks must be
improper, and (2) the remarks must prejudicially affect the substantial rights
of the defendant.” Conner v. GDCP Warden, 784 F.3d 752, 769 (11th Cir. 2015)
(quoting United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir. 1991)). To
meet the second prong, “the prosecutor’s improper remarks must have ‘so
infected the trial with unfairness as to make the resulting conviction a denial
of due process.’ ” Conner, 784 F.3d at 769 (quoting Darden v. Wainwright, 477
U.S. 168, 181 (1986)).
A prosecutor should avoid addressing a defendant’s custody status. See
United States v. Christian, 614 F. App’x 1001, 1004 (11th Cir. 2015) (explaining
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that comments about a defendant’s incarceration can violate the defendant’s
due process right to a fair trial and stating that “a jury’s knowledge of a
defendant’s pre-trial incarceration ‘may lead the jury to speculate that the
defendant is particularly dangerous.’ ” (quoting United States v. VillabonaGarnica, 63 F.3d 1051, 1058 n.6 (11th Cir. 1995))).
Even if the prosecutor’s comment was improper, Tomanetz fails to show
resulting prejudice.

The prosecutor’s isolated remark was made when

discussing State witnesses, and the prosecutor informed the jury of her
mistake a short time later. Tomanetz has not demonstrated that this single
comment infected the whole trial with unfairness given the State’s overall
evidence of guilt, including testimony about Tomanetz’s threats and actions
that suggested he was dangerous. See Christian, 614 F. App’x at 1004–05.
Tomanetz fails to show that the state court’s decision was contrary to or
involved an unreasonable application of clearly established federal law, or was
based on an unreasonable factual determination. He is not entitled to relief on
Ground Two.
C.

Ground Three

Tomanetz asserts that the state trial court erred by instructing the jury
on an uncharged offense. Tomanetz was charged with sexual battery while
coercing the victim to submit by threatening to use force or violence likely to
cause serious personal injury. He contends that the trial court erroneously
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instructed the jury on “sexual battery—specified circumstances.” (Doc. 1, p.
13.) Tomanetz alleges violations of his rights under the Fifth, Sixth, and
Fourteenth Amendments.
Respondent argues that Ground Three is unexhausted and procedurally
defaulted 2 because Tomanetz did not object to the instruction on this basis at
trial. The Court need not determine whether the claim is procedurally
defaulted because, even if it were not procedurally defaulted, the claim
nonetheless fails. See Dallas v. Warden, 964 F.3d 1285, 1307 (11th Cir. 2020)
(“[A] federal court may skip over the procedural default analysis if a claim
would fail on the merits in any event.”).
The Fifth Amendment protects a criminal defendant’s right to be tried
solely on the offenses with which he is charged. United States v. Feldman, 931
F.3d 1245 (11th Cir. 2019). Tomanetz fails to show that the state trial court
violated this right by instructing the jury on an uncharged offense. The jury
instruction was consistent with Florida Standard Jury Instruction 11.3, which
contains instructions for sexual battery charges that involve a range of
“specified circumstances.” Fla. Std. Jury Instr. (Crim.) 11.3.
One of these circumstances, under which Tomanetz was charged, is that
the defendant coerced the victim to submit by threatening to use force or

2 See 28 U.S.C. § 2254(b)(1) (stating that a state prisoner must exhaust available state

court remedies before pursuing a federal habeas petition).

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violence likely to cause serious personal injury. Id. Other circumstances
covered by Standard Jury Instruction 11.3 include, for instance: the victim was
physically helpless to resist; the defendant coerced the victim to submit by
threat of retaliation; and the defendant rendered the victim mentally or
physically incapacitated by the use of a substance. Id.; see also In re Standard
Jury Instructions in Criminal Cases—Instructions 7.8, 7.8(A), and 11.-11.6(A),
190 So.3d 1055 (Fla. 2016) (amending Standard Jury Instruction 11.3 and
establishing the version in effect at the time of Tomanetz’s trial).
The standard instruction form lists all of the possible specified
circumstances and instructs the state trial court to include the applicable
circumstance(s) in its instruction.

Id.

The state trial court did so here.

Although the umbrella term “specified circumstances” was used in the
instruction’s heading, the content of the instruction given at trial involved only
the charged circumstance of coercing the victim to submit by threatening to
use force or violence. (Doc. 9-1, Ex. D, pp. 98–99.) No uncharged “specified
circumstances” were included in the instruction. (Id.)
Tomanetz has not shown any violation of his constitutional rights on the
basis that the state trial court improperly instructed the jury on an uncharged
offense. He is not entitled to relief on Ground Three.
D.

Additional Ground in Tomanetz’s Reply

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In his reply, Tomanetz raises a new ground for relief. He asserts that
the state trial court erred by running his sentences consecutively. (Doc. 12, pp.
11-12.) As addressed, the Court will not consider new claims raised for the
first time in a reply. See Herring, 397 F.3d at 1342.
V.

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).

Instead, a district court or court of appeals must first issue a certificate of
appealability (“COA”). Id. “A [COA] 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 COA, Tomanetz 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).

Tomanetz has not made the requisite showing.

Finally, because

Tomanetz is not entitled to a COA, he is not entitled to appeal in forma
pauperis.
It is therefore ORDERED that Tomanetz’s Petition for Writ of Habeas
Corpus, (Doc. 1), is DENIED. The CLERK is directed to enter judgment
against Tomanetz and in Respondent’s favor and to CLOSE this case.

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DONE AND ORDERED in Tampa, Florida on January 3, 2025.

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