Turner v. Secretary, Department of Corrections et al (Sarasota County)

Filing 19

ORDER: Mr. Turner's petition 8 is DENIED. A certificate of appealability and leave to appeal in forma pauperis are DENIED. The CLERK is directed to enter judgment against Mr. Turner and to CLOSE this case. Signed by Judge William F. Jung on 3/12/2025. (MWC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CALVIN DELEON TURNER, JR.,
Petitioner,
v.

Case No. 8:22-cv-2310-WFJ-CPT

SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.

/
ORDER

Calvin Deleon Turner, Jr., a Florida prisoner, timely filed a pro se petition for writ
of habeas corpus under 28 U.S.C. § 2254. (Doc. 8). Respondent filed a response opposing
the petition. (Doc. 15). Although afforded the opportunity, Mr. Turner did not file a reply.
After careful review, the petition is DENIED.
I.

Background
This case arises from Mr. Turner’s sexual abuse of M.W, H.G., and B.P., three

minor children in the care of Xamadi Johnson, his then-girlfriend. When the abuse took
place, M.W. was five years old, H.G. was seven, and B.P. was nine. (Doc. 16-3, Ex. 1b, at
242). On several occasions in late 2014 and early 2015, Mr. Turner entered the girls’
bedroom while they were asleep and performed various sexual acts on them. (Doc. 16-2,
Ex. 1, at 295-361). The abuse came to light on February 24, 2015, when M.W.
spontaneously told Ms. Johnson that Mr. Turner had digitally penetrated M.W. and H.G.’s
anuses “when they were sleeping.” (Doc. 16-3, Ex. 1b, at 186-87). Later that day, Ms.
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Johnson reported the allegations to law enforcement, and the victims subsequently
underwent forensic interviews with the Sarasota County Child Protection Team. (Id. at
191-93).
Mr. Turner was charged with eight counts of sexual battery on a child under twelve
and one count of attempted sexual battery on a child under twelve. (Doc. 16-2, Ex. 1, at
187-91). A public defender was appointed to represent him. (Id. at 51). Three months later,
Mr. Turner moved to fire his lawyer, arguing that counsel “came down here to get an easy
check.” (Id. at 79). The trial court held a hearing and denied the motion, finding “no
ineffectiveness on the part of . . . court-appointed counsel.” (Id. at 86). The same day, Mr.
Turner mailed a “motion for waiver of counsel,” making an “unequivocal request” to
proceed pro se. (Id. at 87).
Shortly thereafter, the court held a Faretta 1 hearing. (Id., Ex. 1a, at 579). Mr. Turner
stated that “[u]nder no circumstances” would he accept representation from the Public
Defender’s Office. (Id. at 580). He explained that he “could do just as good as” a public
defender. (Id. at 582). The court advised Mr. Turner that self-representation was “a very,
very bad idea,” conducted a lengthy colloquy to “make sure [he] totally [understood] what
[he was] getting into,” and ultimately allowed him to proceed without counsel. (Id. at 58198).
Three months later, Mr. Turner changed his mind, filing a motion for appointment
of “an experience[d] attorney.” (Id., Ex. 1, at 132). The court granted the motion and

1

Faretta v. California, 422 U.S. 806 (1975).

2

appointed the Office of Regional Counsel to represent Mr. Turner. (Id. at 135-36). Another
three months passed, and Mr. Turner again changed his mind. He filed a motion “for waiver
of counsel,” stating that he had “made the determination to represent himself during all
future court proceedings.” (Id. at 144). At a Faretta hearing two weeks later, however, Mr.
Turner withdrew the motion. (Id. at 150).
Approximately one week before trial, Mr. Turner renewed his request to proceed
pro se. (Id. at 183). The court held a hearing. Mr. Turner claimed that the Office of Regional
Counsel was not “providing proper counsel” because its attorneys were “biased toward his
case.” (Id., Ex. 1a, at 444). He stated, however, that he “need[ed] some time to prepare for
trial” without counsel. (Id. at 444-45). The court indicated that if Mr. Turner chose “to
represent [himself] at this late stage, [it] would not use that as a basis to continue the case
and give [him] time to prepare.” (Id. at 445). After hearing from counsel, the court ruled
that it would not “appoint[] other counsel to represent [Mr. Turner]” because his “attorney
[had] not been ineffective.” (Id. at 452). The court asked Mr. Turner if he still wished to
proceed pro se; he responded that he did not “have an answer now.” (Id. at 452, 454). Based
on that statement, the court ruled that counsel would remain “on [the] case.” (Id. at 454).
The court proceeded to address other matters. At the end of the hearing, Mr. Turner again
“invoke[d] [his] right to go pro se.” (Id. at 540). The court indicated that it would “discuss”
the matter later. (Id.)
The next day—the Friday before trial—the court held another Faretta hearing. (Id.
at 543). It explained that counsel was “representing [Mr. Turner] not only competently but
effectively.” (Id. at 545-46). It then advised Mr. Turner of the “dangers and disadvantages”
3

of self-representation. (Id. at 548-52). Mr. Turner said he needed additional time to “study”
the record and prepare a defense, but the court declined to continue the trial. (Id. at 559).
Mr. Turner nonetheless stated that he wished to represent himself. (Id.) He also rejected
the court’s offer to appoint standby counsel. (Id. at 560). The court allowed Mr. Turner to
proceed pro se. (Id. at 562-63).
The following Monday, just before voir dire began, Mr. Turner “changed his mind”
and asked for an attorney. (Doc. 16-3, Ex. 1b, at 3). The court “reappointed” Mr. Turner’s
counsel but indicated that it would be “very unlikely” to allow him to proceed pro se if he
“change[d] his mind again.” (Id.) Counsel sought a continuance, and the court denied the
request, indicating that trial would proceed as scheduled. (Id. at 4-7).
During a break in the proceedings, counsel conferred with Mr. Turner. When court
resumed, counsel moved to withdraw from the case based on a “threat” that Mr. Turner
had made “to [his] family.” (Id. at 8). Counsel stated that, as he was explaining to Mr.
Turner that “the trial was going forward,” Mr. Turner said that “people . . . would do
harmful things to [counsel’s] family” if he did not “win at this trial.” (Id.) The court asked
Mr. Turner why he “[made] that statement.” (Id. at 8-9). Mr. Turner said, “I stated how [I]
feel and I stated facts.” (Id. at 9). Asked whether he had “threatened [his] attorney because
of his inability to get a continuance,” Mr. Turner responded: “It ain’t about no continuance.
I said what I said. I say what I say however you all take it, whatever the charge going to
be, whatever the consequences is.” (Id.)
After a short break, the court indicated that it was “very concerned about the recent
developments in which [Mr. Turner] threatened” counsel. (Id. at 10). It noted that Mr.
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Turner had been “an extremely difficult defendant, volatile at times,” and that the “record
[was] clear as to how many times he [had] sought to represent himself and chang[ed] his
mind.” (Id.) The court “agree[d]” that counsel “should not be required to continue to
represent [Mr. Turner] in light of [the] threat.” (Id. at 11). And it was “absolutely sure” that
if Mr. Turner did not “get his way, he [would] continue with the same conduct irrespective
of who the attorney [was].” (Id.) The court thus indicated that it was “leaning in [the]
direction” of finding that Mr. Turner had “forfeited his right to be represented by counsel.”
(Id. at 12). In support, the court cited Bowden v. State, which held that “allegations to kill,
rape, or otherwise harm an appointed attorney could constitute grounds for forfeiture of the
right to counsel.” 150 So. 3d 264, 267 (Fla. 1st DCA 2014). The court said that it would
“do a little bit more research” and “decide” the matter “later.” (Doc. 16-3, Ex. 1b, at 12).
Soon after, the court returned to the issue of forfeiture. (Id. at 45). After finding that
the threat “was indeed made,” the court granted counsel’s request to withdraw. (Id. at 4546). It explained that counsel should not “be expected to have to represent someone who
[had] threatened [his family] with physical harm.” (Id. at 46). It also found that Mr. Turner
had “forfeited [his] right to have an attorney” by making the “threat.” (Id.) The court
explained that it would not “appoint another [attorney] given [Mr. Turner’s] behavior and
[] conduct and [] threats.” (Id.) The court then proceeded with voir dire. (Id. at 49-50).
Outside the presence of the jury panel, Mr. Turner claimed that he and counsel had
“agreed” to the following plan: counsel “would tell [the court] that [Mr. Turner] threatened
him to get him off [the] case.” (Id. at 109). The court reminded Mr. Turner that he had
admitted to making the threat. (Id. at 110-11). Mr. Turner said, “That’s what I was told to
5

say.” (Id. at 114). The court indicated that it had made its ruling, but that it would “have a
discussion” with counsel about the matter later. (Id.) Trial resumed with Mr. Turner
proceeding pro se. He was found guilty as charged and, shortly after the verdict was read,
received a total sentence of life imprisonment. (Id. at 446-48, 452-53).
At a post-trial hearing, the court returned to the matter of Mr. Turner’s threat. (Id.,
Ex. 1c, at 629). Counsel again described his conversation with Mr. Turner: “He said to me,
if you don’t win this case, my people will hurt your family. And I said, what? And he
repeated it, because I wasn’t quite sure if I honestly heard what was right.” (Id. at 630).
Counsel explained that, although the threat may “have [been] a strategy on [Mr. Turner’s]
part,” he took his client “at his word[].” (Id. at 631). Mr. Turner then repeated his allegation
that the threat was “[his] and [counsel’s] idea.” (Id. at 632-33). He recounted: “I asked him,
is there any way possible, how can I get you off my case. He said, the only way that you
can get me off your case is if you . . . threaten me. So I said, you tell the judge whatever
you got to tell him to get you off my case.” (Id. at 633). The court asked counsel if there
was any “truth” to the allegation that “the threat idea . . . originated with you; that he asked
how can you be taken off the case, and . . . you told him the only way would be if you
threaten me.” (Id. at 634). Counsel said, “No, Your Honor, that’s not correct. It’s not true.
I didn’t come up with that idea, I didn’t suggest that idea to him, and I didn’t think of that
idea.” (Id.)
Following an unsuccessful direct appeal, Mr. Turner moved for postconviction
relief under Florida Rule of Criminal Procedure 3.850. (Id., Exs. 8, 10, 18a). He also filed
a petition alleging ineffective assistance of appellate counsel. (Id., Ex. 15). The state courts
6

denied postconviction relief. (Id., Exs. 11, 17, 18b, 20). This federal habeas petition
followed. (Doc. 8).
II.

Standard of Review
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this

proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief
can 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.
7

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
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 appellate court affirmed Mr. Turner’s convictions, 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, 584 U.S. 122, 125 (2018).
III.

Discussion
A.

Ground One—Forfeiture of Right to Counsel

Mr. Turner contends that the trial court violated the federal constitution by finding
that he forfeited his right to counsel. (Doc. 8 at 5, 17). As explained above, the court made
this ruling after Mr. Turner threatened to harm counsel’s family if he did not “win at . . .
trial.” (Doc. 16-3, Ex. 1b, at 8). According to Mr. Turner, the court erroneously failed to
give him “a prior warning concerning his actions” and “never put [him] under oath
8

pertaining to [his] threat” to harm counsel’s family. (Doc. 8 at 17). Mr. Turner also
complains that the court found forfeiture based on its “personal feelings . . . that [he] would
display the same conduct in the future irrespective of who the attorney [was].” (Id.)
Mr. Turner raised this claim on direct appeal, and the appellate court affirmed in an
unexplained decision. (Doc. 16-3, Ex. 2, at 15; Doc. 16-3, Ex. 8). Therefore, this Court
“presume[s] that the unexplained decision adopted the same reasoning” as the trial court.
Wilson, 584 U.S. at 125. Mr. Turner is not entitled to relief because he cannot show that
the forfeiture ruling was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States.” 2 28
U.S.C. § 2254(d)(1).
“‘[C]learly established Federal law’ for purposes of § 2254(d)(1) includes only the
holdings, as opposed to the dicta, of [the Supreme] Court’s decisions.” White v. Woodall,
572 U.S. 415, 419 (2014). The Supreme Court has repeatedly cautioned lower courts
against framing its decisions at “a high level of generality.” Nevada v. Jackson, 569 U.S.
505, 512 (2013); see also Brown v. Davenport, 596 U.S. 118, 136 (2022) (noting that

Respondent contends that Ground One is procedurally defaulted. (Doc. 15 at 13). The Court disagrees. As
explained above, Mr. Turner properly raised his forfeiture claim on direct appeal, and the appellate court
rejected it without explanation. (Doc. 16-3, Ex. 2, at 15; Doc. 16-3, Ex. 8). Mr. Turner later tried to reassert
the same claim in his Rule 3.850 motion. (Id., Ex. 18a, at 3-8). The postconviction court held that the
forfeiture claim was “procedurally barred” because it “was properly presentable on direct appeal.” (Id., Ex.
18b, at 3). This ruling does not mean, however, that the claim is procedurally defaulted on federal habeas
review. “[I]f the petitioner properly exhausts his federal claim on direct review and then reasserts his claim
on state collateral review only to have the state court impose a procedural bar, that procedural bar will not
preclude the federal court merits review of the federal claim.” Federal Habeas Manual § 9B:11 (2025); see
also Clinkscale v. Carter, 375 F.3d 430, 441 (6th Cir. 2004) (“[B]ecause on direct appeal [petitioner]
properly exhausted his state remedies and did not commit a procedural default, he never had to file a
subsequent post-conviction motion in state court; thus, any procedural default that may have occurred with
respect to that later, unnecessary post-conviction motion simply does not matter for purposes of this
analysis.”).
2

9

“holdings that speak only at a high level of generality” “cannot supply a ground for relief”
under AEDPA). Accordingly, “it is not ‘an unreasonable application of’ ‘clearly
established Federal law’ for a state court to decline to apply a specific legal rule that has
not been squarely established by [the Supreme] Court.” Knowles v. Mirzayance, 556 U.S.
111, 122 (2009); see also Reese v. Sec’y, Fla. Dep’t of Corr., 675 F.3d 1277, 1288 (11th
Cir. 2012) (“The Supreme Court has reiterated, time and again, that, in the absence of a
clear answer—that is, a holding by the Supreme Court—about an issue of federal law, we
cannot say that a decision of a state court about that unsettled issue was an unreasonable
application of clearly established federal law.”).
The Supreme Court has never addressed whether a criminal defendant may forfeit
his right to counsel through egregious misconduct. See Carruthers v. Mays, 889 F.3d 273,
290 (6th Cir. 2018) (“The Supreme Court has never addressed whether a criminal
defendant may forfeit his right to counsel by . . . threatening multiple court-appointed
attorneys.”); Chandler v. Blacketter, 366 F. App’x 830, 831 (9th Cir. 2010) (affirming
denial of habeas petition because petitioner “failed to identify—and we cannot find—any
Supreme Court case clearly establishing that the right to counsel cannot be forfeited
through a defendant’s misconduct”); Carter v. Slatery, No. 3:20-cv-483, 2023 WL
5600063, at *14 (M.D. Tenn. Aug. 29, 2023) (“[T]he Supreme Court has not considered
the underlying question of when, if at all, a recalcitrant criminal defendant can forfeit his
right to counsel.”). The absence of on-point precedent from the Supreme Court is fatal to
Mr. Turner’s claim. See Woodall, 572 U.S. at 426 (“Section 2254(d)(1) provides a remedy
for instances in which a state court unreasonably applies this Court’s precedent; it does not
10

require state courts to extend that precedent or license federal courts to treat the failure to
do so as error.”).
Even apart from the absence of clearly established law, Mr. Turner fails to show
that the trial court acted unreasonably in finding forfeiture. The “appointment of counsel
for an indigent is required at every stage of a criminal proceeding where substantial rights
of a criminal accused may be affected.” Mempa v. Rhay, 389 U.S. 128, 134 (1967). But
“[t]he right to assistance of counsel, cherished and fundamental though it may be, may not
be put to service as a means of delaying or trifling with the court.” United States v. Fowler,
605 F.2d 181, 183 (5th Cir. 1979). Thus, “under certain circumstances, a defendant who is
abusive toward his attorney may forfeit his right to counsel.” United States v. McLeod, 53
F.3d 322, 325 (11th Cir. 1995). “A court may find that a defendant has forfeited his . . .
right to counsel after having engaged in extremely dilatory conduct or extremely serious
misconduct.” United States v. Thomas, 357 F.3d 357, 362 (3d Cir. 2004). “Forfeiture can
be found regardless of whether the defendant has been warned about engaging in
misconduct, and regardless of whether the defendant has been advised of the risks of
proceeding pro se.” Id.
Mr. Turner cannot show that the forfeiture ruling “was so lacking in justification
that there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. Shortly before voir
dire, Mr. Turner told counsel that “people . . . would do harmful things to [his] family” if
he did not “win at . . . trial.” (Doc. 16-3, Ex. 1b, at 8). Asked to explain his threat, Mr.
Turner said, “I stated how [I] feel and I stated facts.” (Id. at 9). Mr. Turner subsequently
11

changed his story, claiming that counsel came up with the idea of the threat as a ploy to get
removed from the case. (Id. at 109, 114). But counsel denied the accusation, saying that he
neither “[came] up with that idea” nor “suggest[ed] [it] to” Mr. Turner. (Id., Ex. 1c, at 634).
On this record, a reasonable jurist could conclude that Mr. Turner forfeited his right to
counsel by threatening to harm his attorney’s family if he did not prevail at trial. See
Fischetti v. Johnson, 384 F.3d 140, 152 (3d Cir. 2004) (“[C]ases have interpreted the law
to require defendants to go to trial unrepresented when they . . . have abused counsel.”);
United States v. Thompson, 335 F.3d 782, 785 (8th Cir. 2003) (defendant forfeited right to
counsel by “threaten[ing] to kill [his attorney] if he did not withdraw”); Thomas, 357 F.3d
at 363 (forfeiture may be “based on a defendant’s verbal abusiveness, threats to harm an
attorney, and attempts to make an attorney engage in unethical activities”); State v. Allgier,
353 P.3d 50, 53 (Utah 2015) (“[M]aking threats to the welfare of appointed counsel may
constitute extreme conduct justifying a forfeiture of counsel.”).
Moreover, Mr. Turner did not make his threat in a vacuum. As the trial court
explained, Mr. Turner had been “an extremely difficult defendant,” expressing unfounded
“dissatisfaction with counsel” on numerous occasions and repeatedly “changing his mind”
about self-representation. (Doc. 16-3, Ex. 1b, at 10). Indeed, the Friday before trial, Mr.
Turner stated that he wished to proceed pro se. (Doc. 16-2, Ex. 1, at 559). He then changed
his mind when he arrived for court on Monday. (Doc. 16-3, Ex. 1b, at 3). Furthermore, Mr.
Turner made his threat only after counsel was unable to secure a continuance of the trial.
(Id. at 7-8). On this record, a reasonable jurist could agree with the trial court’s prediction
that Mr. Turner “would engage in similar threats or conduct with new counsel if he was
12

not satisfied with that counsel’s performance.” (Id. at 11). “A defendant cannot use the
right to counsel as a means to manipulate the court and cause delay.” United States v.
Graham, 643 F.3d 885, 894 (11th Cir. 2011).
Mr. Turner complains that the court failed to give him “a prior warning concerning
his actions” and “never put [him] under oath pertaining to [his] threat.” (Doc. 8 at 17). But
“no clearly established Supreme Court precedent dictates that formal warnings are
required, even in the context of a defendant’s waiving his right to counsel, as would be
required to overturn the state court’s decision under AEDPA.” Carruthers, 889 F.3d at 291
(citation omitted); see also Thomas, 357 F.3d at 362 (“Forfeiture can be found regardless
of whether the defendant has been warned about engaging in misconduct . . . .”). Likewise,
the Supreme Court has never held that a criminal defendant must testify under oath before
a trial court can find that he forfeited his right to counsel.
Thus, because “some fairminded jurists could agree with the state court’s decision,”
Mr. Turner is not entitled to relief on his forfeiture claim. 3 Downs v. Sec’y, Fla. Dep’t of
Corr., 738 F.3d 240, 257 (11th Cir. 2013).
B.

Ground Two—Denial of Access to Deposition Transcripts

Mr. Turner contends that the trial court violated his rights to due process and a fair
trial by failing to ensure his access to deposition transcripts of H.G. and B.P., two of the
victims. (Doc. 8 at 7, 19). During a pretrial hearing, Mr. Turner complained that he had yet
to receive the two deposition transcripts, although he had received transcripts of the

To the extent that Mr. Turner reasserts Ground One in other parts of his petition, the claim fails for the
reasons set forth above.
3

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victims’ forensic interviews with the Child Protection Team. (Doc. 16-2, Ex. 1a, at 552).
Counsel explained that the depositions of H.G. and B.P. were not transcribed because he
“didn’t think there was anything that was revealed [during the depositions] that was outside
of what had already come through discovery.” (Id. at 555). Counsel stated, however, that
he could arrange for Mr. Turner to listen to “recordings” of the depositions at the county
jail. (Id.) On the first day of trial, counsel stated that he had not been able to “play those
depositions that Mr. Turner wanted to hear.” (Doc. 16-3, Ex. 1b, at 7). Counsel said he
would “have to get them off the recorder and have them downloaded and put them on
something to take them to [Mr. Turner].” (Id.) The court instructed counsel to “do that
today.” (Id.) Immediately after this exchange, however, Mr. Turner made the threat that
led to the forfeiture of his right to counsel. (Id. at 7-8). He ultimately did not receive the
deposition transcripts, nor was he able to listen to the recordings. (Doc. 8 at 19-20).
In his petition, Mr. Turner expresses his “belie[f] that the depositions . . . contained
impeachable evidence that would have worked in [his] favor” at trial. (Id. at 19). But he
does not explain how he could have impeached H.G. or B.P. with their deposition
testimony. (Id. at 19-20). Moreover, the record does not contain the deposition transcripts,
and it appears that the depositions were never transcribed. (Doc. 16-2; Doc. 16-3). Mr.
Turner nonetheless contends that, “had he not been denied access to the depositions, . . .
there is a strong possibility that the outcome of . . . [his] trial would have been much
different.” (Doc. 8 at 20).
Respondent contends that Ground Two is procedurally defaulted, but the Court need
not reach that issue because the claim fails on the merits. See Dallas v. Warden, 964 F.3d
14

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.”). Mr. Turner is not entitled to
relief because he cannot show “actual prejudice” under Brecht v. Abrahamson, 507 U.S.
619 (1993). “On collateral review, a federal constitutional error is harmless unless there is
actual prejudice, meaning that the error had a substantial and injurious effect or influence
on the jury’s verdict.” Mansfield v. Sec’y, Dep’t of Corr., 679 F.3d 1301, 1307 (11th Cir.
2012) (emphasis omitted). “To show prejudice under Brecht, there must be more than a
reasonable possibility that the error contributed to the conviction.” Mason v. Allen, 605
F.3d 1114, 1123 (11th Cir. 2010). “The Brecht standard reflects the view that a State is not
to be put to [the] arduous task [of retrying a defendant] based on mere speculation that the
defendant was prejudiced by trial error; the court must find that the defendant was actually
prejudiced by the error.” Davis v. Ayala, 576 U.S. 257, 268 (2015).
Mr. Turner fails to show “more than a reasonable possibility” that the outcome of
his trial would have been different had he received H.G. and B.P.’s deposition transcripts.
Mansfield, 679 F.3d at 1313. As noted above, Mr. Turner does not explain how he could
have used the victims’ deposition testimony to impeach them at trial. Moreover, the record
does not contain the deposition transcripts. The only evidence on the matter is counsel’s
statement that the depositions were not transcribed because he “didn’t think there was
anything that was revealed [during the depositions] that was outside of what had already
come through discovery.” (Doc. 16-2, Ex. 1a, at 555). Thus, Mr. Turner’s assertion of
prejudice rests entirely on his conjecture that, “had he not been denied access to the
depositions, . . . there is a strong possibility that the outcome of . . . [his] trial would have
15

been much different.” (Doc. 8 at 20). Such “speculation” is insufficient to establish actual
prejudice. Calderon v. Coleman, 525 U.S. 141, 146 (1998); see also Wood v. Bartholomew,
516 U.S. 1, 8 (1995) (federal court should not “grant[] habeas relief on the basis of little
more than speculation with slight support”).
C.

Ground Three—Sufficiency of the Evidence

Mr. Turner argues that one of his sexual battery convictions is “unlawful” because
it rested entirely on “a child forensic interview, which is an out-of-court statement.” (Doc.
8 at 9, 21). One count of the information alleged that Mr. Turner’s “mouth had union with
the vagina of H.G.” (Doc. 16-2, Ex. 1, at 189). Another count alleged that Mr. Turner’s
“finger penetrated the anus of H.G.” (Id.) During her forensic interview, H.G. stated that
Mr. Turner (1) “licked” her vagina and (2) “put [his] finger” in her anus. (Id. at 325, 33031). These statements were admitted at trial under Florida’s “hearsay exception for the
statements of a child victim.” 4 Burgess v. State, 324 So. 3d 582, 587 (Fla. 1st DCA 2021).
At trial, H.G. testified that Mr. Turner “licked his finger and [stuck] it in [her] butt.” (Doc.
16-3, Ex. 1b, at 222). She also stated that he “rubb[ed] on [her] leg and [her] thighs.” (Id.)
H.G. did not, however, testify that Mr. Turner licked her vagina. (Id. at 221-23). She did
not deny that the act occurred; she simply did not mention it in her trial testimony. Mr.

“For a child hearsay statement to be admissible, the statement must meet two specific reliability
requirements: (1) the source of the information through which the statement was reported must show
trustworthiness; and (2) the time, content, and circumstances of the statement must reflect that the statement
provides sufficient safeguards of reliability.” Fitzsimmons v. State, 309 So. 3d 261, 264 (Fla. 1st DCA
2020). Following an evidentiary hearing, the trial court ruled that H.G.’s forensic interview would be
“admissible at the trial” based on the two reliability requirements. (Doc. 16-2, Ex. 1, at 232-33).

4

16

Turner was nonetheless found guilty of both performing oral sex on H.G. and digitally
penetrating her anus. (Id. at 447).
Mr. Turner contends that his conviction for performing oral sex on H.G. violates
due process because it rested solely on her “child forensic interview.” (Doc. 8 at 9, 21).
Respondent maintains that this claim is procedurally defaulted, but the Court need not
reach that issue because the claim fails on the merits. See Dallas, 964 F.3d at 1307 (“[A]
federal court may skip over the procedural default analysis if a claim would fail on the
merits in any event.”).
Under the Supreme Court’s decision in Jackson v. Virginia, 443 U.S. 307, 319
(1979), a court reviewing a challenge to the sufficiency of the evidence must evaluate
whether, “after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” The Jackson standard must be applied “with explicit reference to the
substantive elements of the criminal offense as defined by state law.” Id. at 324 n.16. Under
Jackson, the prosecution does not have “an affirmative duty to rule out every hypothesis
except that of guilt beyond a reasonable doubt.” Id. at 326. If the record contains facts
supporting conflicting inferences, the jury is presumed to have “resolved any such conflicts
in favor of the prosecution.” Id.
Mr. Turner fails to meet this “very difficult standard.” In re Boshears, 110 F.3d
1538, 1541 (11th Cir. 1997). To secure a conviction on the relevant sexual battery count,
the prosecution had to prove beyond a reasonable doubt that Mr. Turner “committed an act
upon [H.G.] in which [her] vagina . . . had union with [his] mouth.” (Doc. 16-3, Ex. 1b, at
17

390). H.G. stated in her forensic interview that Mr. Turner “licked” her vagina. (Doc. 162, Ex. 1, at 330-31). That testimony alone was sufficient to sustain Mr. Turner’s conviction
for sexual battery. See Bussell v. State, 66 So. 3d 1059, 1061 (Fla. 1st DCA 2011) (“The
testimony of a single witness, even if uncorroborated and contradicted by other State
witnesses, is sufficient to sustain a conviction.”); Fla. Stat. § 794.022(1) (providing that “in
a prosecution” for sexual battery, “[t]he testimony of the victim need not be corroborated”).
Mr. Turner complains that the testimony supporting his conviction is child hearsay,
but that fact is irrelevant to his sufficiency challenge. “If a statement is admissible [as child
hearsay], it may be considered as substantive evidence by the trier of fact.” Mikler v. State,
829 So. 2d 932, 935 (Fla. 4th DCA 2002). Thus, “a child victim hearsay statement is
sufficient, on its own, to sustain a conviction if the statement is determined to carry the
‘sufficient safeguards of reliability’ specifically required by” Florida law. Williams v. State,
714 So. 2d 462, 466 n.5 (Fla. 3d DCA 1997). Here, the trial court found that H.G.’s outof-court statements contained “sufficient safeguards of reliability.” (Doc. 16-2, Ex. 1, at
232). As a result, her “hearsay statements . . . were sufficient, on their own, to sustain the
conviction.” Glover v. McDonough, No. 6:07-cv-660-MSS-KRS, 2009 WL 1046261, at *9
(M.D. Fla. Apr. 20, 2009).
To be sure, child hearsay may be insufficient to support a conviction where the
victim “completely repudiate[s] or recant[s] her prior out-of-court statements at trial.”
Godbolt v. State, 319 So. 3d 773, 775 (Fla. 1st DCA 2021). But that did not happen here.
H.G.’s trial testimony contained no mention of oral sex, but “she did not testify that the
[oral sex] did not occur or that she made [it] up.” Scott v. State, 389 So. 3d 672, 674 (Fla.
18

1st DCA 2024). Thus, “[b]ecause [H.G.] did not totally repudiate her pretrial statements—
which the trial court determined carried the requisite safeguards of reliability for admission
as substantive evidence—[this Court] cannot say that the evidence was insufficient to show
that a crime was committed.” Godbolt, 319 So. 3d at 777.
D.

Ground Four—Prosecutorial Misconduct

Lastly, Mr. Turner argues that the prosecution violated his constitutional rights by
making several improper comments during closing argument. (Doc. 8 at 23). Respondent
contends that Ground Four is procedurally defaulted, but once again the Court declines to
reach that issue because the claim is meritless. See Dallas, 964 F.3d at 1307 (“[A] federal
court may skip over the procedural default analysis if a claim would fail on the merits in
any event.”).
“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.” United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir. 1991). “A defendant’s
substantial rights are prejudicially affected when a reasonable probability arises that, but
for the remarks, the outcome of the trial would have been different.” United States v.
Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006).
First, Mr. Turner alleges that the prosecution “improperly shifted the . . . burden of
proof” and “announced . . . personal beliefs of [his] guilt” by making the following remarks:
“Now, when we look at that first element [i.e., whether Mr. Turner digitally penetrated
M.W.’s anus], has it been proven beyond a reasonable doubt? Yes. [M.W.] told [her
mother] spontaneously, without her questioning, that Calvin Turner licked . . . his finger
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and put it in [her anus].” (Doc. 16-3, Ex. 1b, at 414). These remarks were proper. The
prosecution did not shift the burden of proof. Nothing in the challenged remarks suggested
that Mr. Turner had “an obligation to produce any evidence or to prove innocence.” United
States v. Simon, 964 F.2d 1082, 1086 (11th Cir. 1992). Nor did the prosecution express a
“personal belief[]” in Mr. Turner’s guilt. (Doc. 8 at 23). Instead, it merely urged the jury
to draw a reasonable inference from the evidence presented at trial. “A prosecutor is not
limited to a bare recitation of the facts, but instead, may comment on the evidence and
express the conclusions he contends the jury should draw from the evidence.” Crenshaw
v. Sec’y, Fla. Dep’t of Corr., No. 16-17735-D, 2017 WL 6761058, at *6 (11th Cir. Oct. 18,
2017); see also United States v. Reeves, 742 F.3d 487, 505 (11th Cir. 2014) (“The purpose
of closing argument is to assist the jury in analyzing the evidence, and although a
prosecutor may not exceed the evidence presented at trial during her closing argument, she
may state conclusions drawn from the trial evidence.”).
Second, Mr. Turner argues that the prosecution improperly “instruct[ed] the jury to
consider a child forensic interview over the victim’s testimony [at trial].” (Doc. 8 at 23).
This argument rests on the premise that child hearsay is “insufficient” to support a sexual
battery conviction. (Id. at 23-24). As explained above, the premise is mistaken. See
Williams, 714 So. 2d at 466 n.5 (“[A] child victim hearsay statement is sufficient, on its
own, to sustain a conviction if the statement is determined to carry the ‘sufficient
safeguards of reliability’ specifically required by [Florida law].”). Thus, the prosecution
did not commit misconduct by urging the jury to “focus on [the] child forensic interview.”
(Doc. 16-3, Ex. 1b, at 419).
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Third, Mr. Turner claims that the prosecution “improperly shifted the burden of
proof” when it made the following remarks: “You don’t even look to the lesser-included
offense [i.e., simple battery]. You don’t even consider it unless you feel that the State didn’t
prove the charge beyond a reasonable doubt. You are supposed to find the highest offense
proven, which will be the sexual batteries.” (Id. at 426). These remarks did not imply that
Mr. Turner had “an obligation to produce any evidence or to prove innocence.” Simon, 964
F.2d at 1086. Thus, they did not shift the burden of proof. Instead, the prosecution (1)
correctly informed the jury of its duty to “find guilt of the highest offense the State proved,”
McKee v. State, 398 So. 3d 1047, 1051 (Fla. 1st DCA 2024), and (2) appropriately
“express[ed] [its view of] the conclusions . . . the jury should draw from the evidence.”
Crenshaw, 2017 WL 6761058, at *6.
Fourth, Mr. Turner contends that the prosecution made the following “improper”
remarks: “The State has met its burden. We ask you to find him guilty of all the crimes
because that is what the evidence supports and that holds him responsible for what he did
to those girls in their home where they’re supposed to be safe. . . . We ask you to return a
verdict of guilty because it’s the right thing.” (Doc. 16-3, Ex. 1b, at 428). The prosecution
did not engage in misconduct by urging the jury to hold Mr. Turner responsible for his
crimes. See Bell v. State, 108 So. 3d 639, 649 (Fla. 2013) (prosecutor did not overstep in
urging jury to “hold the defendant responsible for the crimes he committed and . . . reflect
so in your verdict of guilty as charged”); Houart v. Sec’y, Dep’t of Corr., No. 8:14-cv1034-CEH-MAP, 2017 WL 4003759, at *9 (M.D. Fla. Sept. 12, 2017) (state court
reasonably concluded that “asking the jurors to hold the [d]efendant accountable is neither
21

improper nor misleading, and is a permissible statement in a prosecutor’s closing
argument”).
As for the prosecution’s request to “return a verdict of guilty because it’s the right
thing,” Mr. Turner cannot show prejudice from this isolated remark. (Doc. 16-3, Ex. 1b, at
428). Before closing argument, the trial court instructed the jury that (1) “what the parties
say is not evidence,” and (2) “[t]his case must be decided only upon the evidence that you
have heard from the testimony of the witnesses and have seen in the form of the exhibits
in evidence.” (Id. at 399-400, 409). “Because statements and arguments of counsel are not
evidence, improper statements can be rectified by the [trial] court’s instruction to the jury
that only the evidence in the case be considered.” United States v. Smith, 918 F.2d 1551,
1562 (11th Cir. 1990); see also Brown v. Jones, 255 F.3d 1273, 1280 (11th Cir. 2001)
(“[J]urors are presumed to follow the court’s instructions.”). Thus, Mr. Turner fails to show
“a reasonable probability . . . that, but for the [challenged] remark[], the outcome of the
trial would have been different.” Eckhardt, 466 F.3d at 947.
IV.

Conclusion
Accordingly, the Court ORDERS:
1. Mr. Turner’s petition (Doc. 8) is DENIED.
2. The CLERK is directed to enter judgment against Mr. Turner and to CLOSE this
case.
3. Mr. Turner 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
22

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. Turner
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. Turner has not made the requisite
showing. Because Mr. Turner is not entitled to a certificate of appealability, he is
not entitled to appeal in forma pauperis.
DONE AND ORDERED in Tampa, Florida, on March 12, 2025.

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