Buhler v. Department of Corrections

Filing 27

ORDER ADOPTING 19 REPORT AND RECOMMENDATION IN PART: Accordingly, it is hereby ORDERED AND ADJUDGED: United States Magistrate Judge Matthewman's Amended Report and Recommendation (DE 19) is RATIFIED, ADOPTED, AND APPROVED in part. Petitioner& #039;s Petition (DE 1) is DENIED. The request for a certificate of appealability is DENIED as to all grounds raised in the petition. Final Judgment will issue by separate order. Signed by Judge Donald M. Middlebrooks on 3/27/2024. See attached document for full details. (wce)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 21-CV-80115-MIDDLEBROOKS/Matthewman
DONALD BUHLER,
Petitioner,
V.

SECRETARY, DEPARTMENT OF
CORRECTIONS, STATE OF FLORIDA,
Respondent.

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ORDER ADOPTING REPORT AND RECOMMENDATION IN PART

THIS CAUSE comes before the Court upon the Amended Report and Recommendation
("Report") issued by Magistrate Judge William Matthewman on January 26, 2024. (DE 19). On
June 28, 2018, a jury found Petitioner guilty on two counts-sexual battery upon a person less
than twelve years of age and lewd and lascivious molestation of a minor female victim. Petitioner
now challenges the constitutionality of his conviction, and he filed a § 2254 Petition for Writ of
Habeas Corpus (DE 1). The Report recommends that I deny Petitioner's Petition. It further
recommends that I grant a certificate of appealability as to ground seven in the Petition.
Petitioner filed objections to the Report on March 22, 2024, after I extended the deadline
several times as a result of a family emergency with Petitioner's counsel. (DE 21, DE 23, DE 25).
Now, in his objections, Petitioner raises eight "grounds" as objections to the Magistrate's Report.
Such grounds are repetitive of the ones raised before Judge Matthewman and thoroughly
considered in his Report. Upon a de novo review of Judge Matthewman's Report, the objections,
and the overall record, I am going to overrule the objections as I find Judge Matthewman
thoroughly considered Petitioner's arguments and reached the correct conclusions. However, I

decline to issue a certificate of appealability as to ground seven of the report, like the Magistrate
suggests, and I decline to issue a certificate of appealability as to ground one, like Petitioner
requests.
In his Report, Judge Matthewman recommends I issue a certificate of appealability as to
Petitioner's seventh ground for habeas, which is whether the use of a six-person jury in a capital
sexual battery case violates Petitioner's Sixth Amendment constitutional rights as applied to the
states through the Fourteenth Amendment. "[W]hen a habeas corpus petitioner seeks to initiate an
appeal of the dismissal of a habeas corpus petition" pursuant to 28 U.S.C. §§ 2254-55, "the right
to appeal is governed by the certificate of appealability requirements ... found at 28 U.S.C. §
2253(c)." Slackv. McDaniel, 529 U.S. 473,478 (2000). Pursuant to§ 2253(c)(2), a district court
may only issue a certificate of appealability when "the applicant has made a substantial showing
of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). At this point, Petitioner has not
demonstrated that his constitutional rights were compromised by the trial judge's decision to allow
a six-personjury. See Williams v. Florida, 399 U.S. 78, 103 (1970) (upholding Florida's use ofa
six-person jury under the Sixth Amendment as applied to the states through the Fourteenth
Amendment). Although Judge Matthewman points out that Florida is an outlier in allowing sixperson juries in serious c'ases and that the law might be evolving to require twelve person juries
for all serious crimes, the question on habeas is whether the state trial judge violated "clearly
established federal law." Williams v. Taylor, 529 U.S. 362,412 (2000). As the holding of Williams
v. Florida remains clear and controlling, I decline to adopt Judge Matthewman' s recommendation
in issuing a certificate of appealability as to ground seven.
Additionally, although Judge Matthewman found that Petitioner's first ground for habeas
did not meet the Slack test for appeal, the Petitioner argues that he erred in this conclusion. Upon

a consideration of Petitioner's arguments, I also decline to issue a certificate of appealability as to
ground one. The competency of a witness is a state evidentiary matter, and courts are "reluctan[t]
to second-guess state evidentiary rulings on habeas review, rarely granting relief on the basis of
such rulings." Boykins v. Wainwright, 737 F.2d 1539, 1544 (11th Cir. 1984). In this instance, a
review of the trial transcript does not lead me to question that decision; the witness was live and
present for cross-examination, acknowledged her understanding of the difference between a truth
and lie, and answered some of the questions presented by the defense on cross-examination.
Although it is true that she stated she "did not remember" or refused to answer many of the
questions asked, I agree that any possible confrontation issue was not prejudicial to the jury's
finding of guilt. Petitioner was afforded an opportunity to confront his accuser and impeach her.
Any inability to do so effectively was mitigated by his ability to enter the victim's video deposition
into the record and by the other particularly damning evidence against him, such as the phone call
with the victim's mother when he admitted to "horseplay" with the victim, which included placing
his mouth "on her tooshie." (DE 19 at 21); see Mason v. Allen, 605 F.3d 1114, 1124 (11th Cir.
2010) (holding that to reverse a conviction in light of a Confrontation Clause violation, the
petitioner must show "prejudice").
Accordingly, it is hereby ORDERED AND ADJUDGED:··
(1) United States Magistrate Judge Matthewman's Amended Report and Recommendation
(DE 19) is RATIFIED, ADOPTED, AND APPROVED in part.
(2) Petitioner's Petition (DE 1) is DENIED.
(3) The request for a certificate of appealability is DENIED as to all grounds raised in the
petition.
(4) All pending motions are DENIED as moot.

(5) Final Judgment will issue by separate order.
SIGNED in Chambers in West Palm Beach, Florida, thi~?'day of March, 2024.

DONALD M. MIDDLEBROOKS
UNITED STATES DISTRICT mDGE
Copies to: Counsel of Record