HORN v. SECRETARY FLORIDA DEPARTMENT OF CORRECTIONS

Filing 19

ORDER ON THE REPORT AND RECOMMENDATION - The 18 report and recommendation is accepted in part. The case is remanded to the magistrate judge for further proceedings. Signed by JUDGE ROBERT L HINKLE on 6/13/2017. (cle)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

DEANGELO HORN,
Petitioner,
v.

CASE NO. 4:15cv101-RH/EMT

SECRETARY FLORIDA DEPARTMENT
OF CORRECTIONS,
Respondent.
_________________________________/
ORDER ON THE REPORT AND RECOMMENDATION
By petition for a writ of habeas corpus under 28 U.S.C. § 2254, Deangelo
Horn challenges his state-court conviction for sexual battery on a child under age
12 and related offenses. The petition is before the court on the magistrate judge’s
report and recommendation, ECF No. 28. No objections have been filed.
The report and recommendation is correct and is adopted as the court’s
opinion on all issues but one. In ground four, Mr. Horn says his attorney rendered
ineffective assistance by failing to investigate the alleged victim’s false allegation
that on a different occasion, a family member sexually abused her. Mr. Horn says

Case No. 4:15cv101-RH/EMT

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his attorney rendered ineffective assistance by failing to adequately assert his
constitutional right to cross-examine the victim about the false allegation.
When Mr. Horn presented this claim on collateral review in state court, the
court said Florida law prohibits cross-examining a victim not only about her own
prior sexual history but also about false accusations of sexual abuse. The report
and recommendation accepts this view of state law and concludes there is no
federal constitutional right to cross-examine a witness about false accusations of
sexual abuse. That is incorrect. See Sec’y, Fla. Dep’t of Corr. v. Baker, 406 F.
App’x 416, 424-25 (11th Cir. 2010) (affirming the grant of habeas relief from a
conviction for sexual abusing a 15-year-old because the trial court excluded
evidence that the 15-year-old had falsely accused others of sexual abuse).
This order remands the case to the magistrate judge for further proceedings
on this issue, including a determination of whether there is a factual basis for Mr.
Horn’s assertion that evidence was available—or a reasonable investigation would
have turned up evidence—that the alleged victim had falsely accused another
person of sexually abusing her. The determination of whether an evidentiary
hearing is required is left in the first instance to the magistrate judge.
For these reasons,
IT IS ORDERED:
1. The report and recommendation is accepted in part.

Case No. 4:15cv101-RH/EMT

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2. The case is remanded to the magistrate judge for further proceedings.
SO ORDERED on June 13, 2017.
s/Robert L. Hinkle
United States District Judge

Case No. 4:15cv101-RH/EMT