HARRIS v. DIXON

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
TYRONE B. HARRIS,
Petitioner,
vs. 	Case No.: 4:22cv416/MW/ZCB
RICKY D. DIXON
Respondent.
_______________________/
REPORT AND RECOMMENDATION
This 	is 	a 	habeas 	corpus 	case 	filed 	under 	28 	U.S.C. 	§ 	2254.
Petitioner claims he is entitled to habeas relief because of ineffective
assistance of counsel. 	(Doc. 1). 	Respondent has answered the petition,
and Petitioner has replied. 	(Docs. 9, 16). 	For the reasons below,
Petitioner is not entitled to habeas relief.1
1 An evidentiary hearing is not necessary to resolve this matter. 	Rule
8(a), Rules Governing Section 2254 Cases.
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I. 	Factual Background2
On July 7, 2015, deputies with the Taylor County Sheriff’s Office
responded to a report of a sexual battery in progress. When they arrived
at the scene, deputies saw Petitioner attempting to leave. They detained
him while investigating the report.
As part of that investigation, Deputy Warren spoke to a distraught
fourteen-year-old girl. 	The girl said that Petitioner had aggressively
approached her while she was weed-eating the yard. 	The girl reported
that Petitioner pushed her against the back of a mobile home, turned her
around, pulled down her pants, and then forced himself on her. 	Deputy
Warren 	observed 	white 	paint 	dust 	on 	the 	girl’s 	back, 	which 	was
consistent with her description of being pushed against the mobile home.
The victim’s brother and his girlfriend were also at the scene. The
victim’s brother told deputies that he sent his girlfriend to check on the
victim because he did not trust Petitioner alone with her. 	The brother
reported that his girlfriend went behind the mobile home and then
2 	The 	facts 	included 	in 	this 	section 	are 	taken 	from 	the 	Sworn
Complaint/Probable Cause Affidavit and DNA reports. (Doc. 9-12 at 55-
61). There was no trial because Petitioner pleaded guilty.
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returned screaming that his sister was being raped. 	The brother’s
girlfriend provided a sworn statement explaining that she saw Petitioner
bending the victim over with her pants and underwear down. According
to the statement, Petitioner was restraining the victim and telling her to
be quiet.
DNA testing was performed on swabs and hairs collected from the
victim and Petitioner. 	(Doc. 9-12 at 55-58). 	Much of the DNA collected
was not interpretable. Of the DNA that was interpretable, there was no
DNA foreign to the victim on her body. No DNA foreign to Petitioner was
found 	on 	his 	own 	genitalia. 	But 	the 	victim’s 	DNA 	was 	found 	on
Petitioner’s fingers.
II. 	Procedural History
The State initially charged Petitioner with sexual battery by penile
penetration (Count 1) and an enhanced version of that offense under
Florida’s 	Dangerous 	Sexual 	Felony 	Offender 	statute, 	Fla. 	Stat.
§ 794.0115 (Count 2).3 	The State subsequently amended Count 1 to
charge sexual battery by penile or digital penetration. (Doc. 9-1).
3 Petitioner was a registered sex offender when he committed the offense
in this case. (Doc. 9-6 at 17-18).
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Represented 	by 	counsel, 	Petitioner 	entered 	a 	written 	plea
agreement with the State. 	Under the agreement, Petitioner agreed to
enter an “open” guilty plea to the unenhanced sexual battery charge
(Count 1). 	(Doc. 9-3). 	In exchange for Petitioner’s guilty plea, the State
agreed not to seek three specific sentencing enhancements.4 The State
reserved the right to request a Habitual Felony Offender enhancement.
The State agreed, however, to a cap of sixty years of imprisonment
instead of the otherwise applicable maximum of life imprisonment. (Id.).
The State also agreed to dismiss Count 2. (Doc. 9-4 at 4). The trial court
accepted the plea agreement, found Petitioner guilty of Count 1, and
sentenced 	him 	as 	a 	Habitual 	Felony 	Offender 	to 	sixty 	years’
imprisonment. 	(Doc. 9-3 at 7; Docs. 9-4 through 9-6; Doc. 9-12 at 65-67).
Petitioner appealed to Florida’s First District Court of Appeal
(“First 	DCA”), 	which 	summarily 	affirmed. 	(Docs. 	9-7, 	9-9). 	Next,
Petitioner sought state postconviction relief by filing a pro se Rule 3.850
4 The three enhancements were Florida’s Prison Releasee Reoffender
(PRR) enhancement, Violent Career Criminal (VCC) enhancement, and
Dangerous 	Sexual 	Felony 	Offender 	enhancement 	under 	Fla. 	Stat.
§ 794.0115. 	(Doc. 9-12 at 13). 	The Dangerous Sexual Felony Offender
enhancement would have carried a mandatory minimum term of fifty
years imprisonment up to life imprisonment. Fla. Stat. § 794.0115(2).
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motion in the trial court. (Doc. 9-11). The trial court denied the motion.
(Docs. 9-12, 9-15). 	Petitioner appealed that denial to the First DCA,
which summarily affirmed. (Docs. 9-13, 9-14).
Petitioner then moved his postconviction efforts to federal court by
filing the current habeas corpus petition under 28 U.S.C. § 2254. 	(Doc.
1). Before discussing the arguments raised in the petition, the Court will
summarize the applicable legal standards.
III. 	Legal Standard for 28 U.S.C. § 2254 Petitions
Under § 2254(d), a federal court may grant habeas relief only if a
state court decision on the merits (1) “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) “was based
on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). This
is a “highly deferential standard,” which “demands that state-court
decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S.
170, 181 (2011). 	When considering a state prisoner’s habeas petition
under § 2254(d), a federal court is not sitting as an appellate court with
the mandate of correcting errors that may have occurred in the state
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court. See Shinn v. Ramirez, 596 U.S. 366, 377 (2022) (explaining that a
federal 	habeas 	proceeding 	is 	not 	“a 	substitute 	for 	ordinary 	error
correction through appeal”) (cleaned up).
To be contrary to clearly established federal law under § 2254(d)(1),
“the 	state 	court 	must 	either 	(1) 	apply 	a 	rule 	that 	contradicts 	the
governing law set forth by Supreme Court case law, or (2) reach a
different result from the Supreme Court when faced with materially
indistinguishable facts.” 	Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir.
2010) (cleaned up). And to meet the unreasonable application standard,
“a prisoner must show far more than that the state court’s decision was
merely wrong or even clear error.” Shinn v. Kayer, 592 U. S. 111, 118
(2020) (cleaned up). 	Rather, the state court’s application of federal law
must be “so obviously wrong that its error lies beyond any possibility for
fairminded disagreement.” 	Id. (cleaned up). This standard reflects that
the writ of habeas corpus is an “extraordinary remedy that guards only
against extreme malfunctions in the state criminal justice systems.”
Ramirez, 596 U.S. at 377 (cleaned up).
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IV. 	Legal Standard for Ineffective Assistance of Counsel
Challenges to a Guilty Plea
“A guilty plea is an admission of criminal conduct as well as the
waiver of the right to trial.” Finch v. Vaughn, 67 F.3d 909, 914 (11th Cir.
1995). 	The advantages of entering a guilty plea may be secured only “if
dispositions by guilty plea are accorded a great measure of finality.”
Blackledge v. Allison, 431 U.S. 63, 71 (1977). “The plea process brings to
the criminal justice system a stability and a certainty that must not be
undermined by the prospect of collateral challenges in cases not only
where witnesses and evidence have disappeared, but also in cases where
witnesses and evidence were not presented in the first place.” 	Premo v.
Moore, 562 U.S. 115, 132 (2011).
“The 	question 	of 	whether 	an 	attorney 	provided 	ineffective
assistance of counsel in the context of a guilty plea is subject to the
familiar two-part inquiry first spelled out in Strickland v. Washington . .
. .” 	Riolo v. United States, 38 F.4th 956, 967 (11th Cir. 2022). That two-
part inquiry requires a showing that (1) counsel’s performance was
deficient, and (2) prejudice resulted. 	Id. 	For deficient performance, it
must be shown that counsel’s representation “fell below an objective
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standard of reasonableness.” 	Id. In the plea context, prejudice requires
a 	showing 	that 	“counsel’s 	constitutionally 	ineffective 	performance
affected the outcome of the plea process.” 	Hill v. Lockhart, 474 U.S. 52,
59 	(1985). 	Thus, 	the 	petitioner 	must 	demonstrate 	a 	reasonable
probability that, but for counsel’s deficient performance, he would not
have pleaded guilty and would have insisted on going to trial. 	Id. at 58-
59.
Where a petitioner alleges that counsel’s error caused him to accept
a plea offer that he otherwise would not have accepted, a petitioner “must
convince the court that a decision to reject the plea bargain would have
been rational under the circumstances.” 	Padilla v. Kentucky, 559 U.S.
356, 372 (2010). That is a difficult burden to meet when the record shows
that the petitioner had no viable defenses, and the evidence of his guilt
was overwhelming. 	See Sierra v. Sec’y, Fla. Dep’t of Corr., 657 F. App’x
849, 852 (11th Cir. 2016) (“A petitioner who has no viable trial defenses
cannot establish prejudice from counsel’s advice to plead guilty.”).
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V. 	Discussion5
A. 	Ground 1A (verbatim): 	“Counsel failed to negotiate
proper 	plea 	agreement 	in 	exchange 	for
information/testimony 	regarding 	two 	murder 	cases
and 	misadvice 	on 	a 	promise 	of 	leniency, 	violating
Petitioner’s Fifth, Sixth, and Fourteenth Amendment
rights under the U.S. Constitution”
In Ground 1A, Petitioner claims counsel performed ineffectively by
falsely promising that his sentence would not exceed ten years if he
pleaded guilty and cooperated in two murder cases. 	(Doc. 1 at 5-6).
Petitioner claims that although he cooperated, he did not receive the ten-
year sentence promised by counsel. 	According to Petitioner, he failed to
mention this promise at the change of plea hearing because his counsel
told him not to tell the judge. 	(Doc. 1 at 6). 	Petitioner alleges he would
have proceeded to trial had it not been for counsel’s promise that he
would receive a ten-year sentence. (Id.).
Petitioner raised 	this 	argument 	in 	his 	state 	court 	Rule 	3.850
motion. 	The state trial court rejected the argument, finding that it was
unsupported by the record. (Doc. 9-12 at 2-3). The First DCA summarily
5 The Court has consolidated and reorganized some of Petitioner’s claims
for ease of discussion and brevity.
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affirmed.6 	(Doc. 9-14). 	Thus, the question before this Court today is
whether the state court’s decision “was contrary to, or involved an
unreasonable 	application 	of, 	clearly 	established 	Federal 	law, 	as
determined by the Supreme Court of the United States.” 	28 U.S.C.
§ 2254(d)(1). The answer is no.
Looking to the state court record, it supports the trial court’s
rejection of Petitioner’s claim that his counsel performed ineffectively by
falsely 	promising 	him 	a 	sentence 	of 	ten 	years’ 	imprisonment 	if 	he
cooperated with the government. First, the written plea agreement that
Petitioner signed specifically stated as follows:
2. 	I 	have 	not 	been 	coerced, 	threatened, 	or
intimidated in any way to get me to plead, and I have
received no promises except those stated in paragraph 6
below. 	I consider the plea to be to my advantage even
though I understand that the judge may impose any
sentence upon me which the judge deems fit within the
limits of the law.
. . . .
6 The First DCA affirmed without explanation. Thus, this Court will “look
through” 	the 	First 	DCA’s 	unexplained 	decision 	to 	the 	trial 	court’s
decision denying Petitioner’s Rule 3.850 motion (Doc. 9-12) because it is
“the 	last 	related 	state-court 	decision 	that 	does 	provide 	a 	relevant
rationale.” 	Wilson v. Sellers, 584 U.S. 122, 125 (2018). The same is true
with respect to all of Petitioner’s other claims.
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6. 	My 	attorney, 	the 	State 	Attorney, 	and 	I 	have
negotiated my plea. 	In return for my plea, the State
Attorney and I have agreed to:
The 	State 	will 	not 	seek 	PRR, 	VCC, 	or
§ 794.0115 	enhancements. 	This 	is
otherwise 	an 	open 	plea. 	The 	State
reserves 	the 	right 	to 	request 	a 	HFO
sentence. 	If an HFO sentence is imposed,
it will not exceed 60 years in prison.
(Doc. 9-3 at 5) (italics added). Petitioner signed the plea agreement under
oath and placed his initials next to the bolded language above. 	(Id. at 5,
6). 	Just above Petitioner’s signature on the plea agreement were the
following 	words: 	“The above seven paragraphs are the complete terms
of this agreement.” (Id. at 6).
Second, a change of plea hearing was held before the trial court
judge. 	During that hearing, the trial court judge discussed the plea
agreement with Petitioner. 	(Doc. 9-4). 	Petitioner stated (under oath)
that he had read his plea agreement, discussed it with counsel, and had
no questions. 	(Id. at 11). 	Petitioner expressed his understanding that,
because of his plea agreement, he faced a potential sentence of up to sixty
years’ imprisonment. 	(Id. at 13, 20). 	The trial judge asked Petitioner
(twice) whether he had been promised anything aside from what was set
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forth in his plea agreement. 	(Id. at 12, 13). 	Both times, Petitioner
answered “No, sir.” (Id.).
As 	the 	discussion 	above 	demonstrates, 	Petitioner’s 	claim 	that
counsel 	provided 	ineffective 	assistance 	by 	falsely 	promising 	him 	a
sentence 	of 	ten 	years’ 	imprisonment 	if 	he 	cooperated 	with 	the
government is “plainly refuted by the record.” Reed v. United States, 792
F. App’x 676, 677 (11th Cir. 2019) (rejecting habeas petitioner’s claim
that his lawyer provided ineffective assistance by making a “false”
promise regarding the length of his sentence). 	The record shows that
Petitioner was advised both in his plea agreement and during the change
of 	plea 	hearing 	that 	he 	faced 	a 	potential 	sentence 	of 	sixty 	years’
imprisonment. 	And Petitioner repeatedly acknowledged (under oath)
that nobody had promised him anything that was not set forth in the plea
agreement. 	It is presumed that “statements made during the plea
colloquy are true,” and Petitioner has not met his “heavy burden to show
that his own statements, made under oath at the time, were false.” Riolo,
38 F.4th at 968. 	Accordingly, Petitioner is not entitled to habeas relief
on Ground 1A. 	See Samuels v. Sec’y, Dep’t of Corr., 803 F. App’x 387,
387-88 (11th Cir. 2020) (affirming denial of habeas relief on claim that
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counsel failed to seek enforcement of an alleged off-the-record promise of
a lower sentence).7
B. 	Ground 	1B 	(verbatim): 	“Ineffective 	assistance 	of
counsel–failure 	to 	present 	trial 	court 	with 	factual
evidence that refutes the factual basis of the charged
offenses–violating Petitioner’s Sixth and Fourteenth
Constitutional 	Guarantees 	of 	the 	United 	States
Constitution.”
Ground 	1D 	(verbatim): 	“Ineffective 	assistance 	of
counsel by giving trial court false statement of facts
pertaining 	to 	DNA 	evidence, 	violating 	Petitioner’s
Sixth and Fourteenth Amendment Rights to the United
States Constitution.”
In Grounds 1B and 1D, Petitioner alleges defense counsel was
ineffective for not informing the trial court of certain things. 	(Doc. 1 at
7-9). 	First, Petitioner alleges counsel failed to tell the court about
allegedly exculpatory evidence, including DNA reports and inconsistent
7 The heading of Ground 1A also references defense counsel’s “fail[ure] to
negotiate proper plea agreement.” (Doc. 1 at 5). Petitioner included that
language in the heading of Ground One of his Rule 3.850 motion. 	(Doc.
9-11 at 5). But Petitioner has not alleged (either in his § 2254 petition or
his 	Rule 	3.850 	motion) 	any 	facts 	to 	support 	a 	claim 	that 	counsel
performed deficiently during plea negotiations. Nor did Petitioner allege
facts that show a reasonable probability that the State would have agreed
to 	terms 	more 	favorable 	to 	Petitioner 	had 	counsel 	been 	a 	better
negotiator. 	Thus, to the extent Petitioner has asserted an ineffective
assistance claim on this basis, it lacks merit.
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statements 	from 	the 	victim. 	Second, 	he 	alleges 	counsel 	and 	the
prosecutor falsely responded “No” when the trial court asked whether
there was any physical evidence for which DNA testing might exonerate
Petitioner. 	Third, Petitioner alleges counsel failed to inform the trial
court that he had a history of mental health issues and was taking
psychotropic medications. 	According to Petitioner, counsel’s failure to
inform the court of these matters resulted in the entry of an involuntary
guilty plea.
Petitioner raised these arguments in his state trial court Rule 3.850
motion. 	(Doc. 9-11). 	The trial court found them to be without merit.
(Doc. 9-12 at 2-3). 	The First DCA summarily affirmed. 	(Doc. 9-14).
Thus, the question before this Court today is whether the state court’s
decision “was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of
the United States.” 28 U.S.C. § 2254(d)(1). The answer is no.
1. 	The plea proceedings
Petitioner affirmed, by signing the plea agreement, that he and
defense counsel had reviewed and discussed the evidence. 	(Doc. 9-12 at
14). 	That evidence included DNA reports and witness depositions.
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Petitioner also affirmed that he had fully discussed his case with counsel,
including the charge and any defenses. (Id. at 12). Petitioner agreed, as
a term of the plea agreement, that there was a factual basis for his guilty
plea to sexual battery. (Id. at 10).
During the change of plea hearing, defense counsel told the trial
judge that she had taken depositions and believed there was a factual
basis for the amended charge of sexual battery by penile or digital
penetration. 	(Doc. 9-12 at 35). 	The trial court asked if there was any
physical evidence for which DNA testing might exonerate Petitioner. (Id.
at 32). Counsel answered no. (Id.).
Petitioner assured the trial court that he wanted to waive his trial
rights and enter a guilty plea. 	(Id. at 29). 	Petitioner affirmed that he
believed pleading guilty was in his best interests. 	(Id. at 35). 	And the
trial court found there was a factual basis for the guilty plea. (Id. at 35-
36).
2. 	Petitioner’s Rule 3.850 motion
Petitioner argued in Grounds 2 and 3 of his Rule 3.850 motion that
defense counsel was ineffective for not only failing to inform the trial
court 	of 	DNA 	evidence 	that 	exonerated 	him 	(allegedly) 	but 	also
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affirmatively 	telling 	the 	court 	that 	there 	was 	no 	exonerating 	DNA
evidence. 	(Doc. 9-11 at 7-12). 	Petitioner further alleged that counsel
failed to tell the trial court that the victim had recanted her claim of
sexual assault.
The state postconviction court denied the Rule 3.850 motion and
found that the record conclusively refuted Petitioner’s allegation that the
DNA evidence exonerated him (Doc. 9-12 at 3-7, 55-58). 	The trial court
relied on the DNA reports that pre-dated Petitioner’s guilty plea. Those
reports showed that much of the DNA recovered was not interpretable.
Of the DNA that was interpretable, it did not show the presence of
Petitioner’s DNA or DNA from any other male donor. 	The reports,
however, showed the presence of the victim’s DNA on Petitioner’s fingers.
And 	that 	was 	significant, 	of 	course, 	because 	the 	charge 	to 	which
Petitioner pleaded guilty could be committed by digital penetration.
The trial court also found that the record refuted Petitioner’s
allegation that the victim recanted her allegation of sexual battery. (Doc.
9-12 at 4, 6). 	The trial court pointed to the arrest affidavit and a letter
the victim had sent to the sentencing judge. (Id. at 59-61, 64). The arrest
affidavit 	included 	the 	victim’s 	description 	of 	Petitioner 	sexually
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assaulting her. 	(Id. 	at 59-61). 	The arrest report also included an
eyewitness’s statement that she saw Petitioner sexually assaulting the
victim. 	The victim’s letter to the sentencing judge discussed how the
incident had adversely affected her life. (Id. at 51-52, 64).
With respect to Petitioner’s mental health history, the state court
found that the trial court knew about Petitioner’s mental health issues
and medications. 	And the trial court found that Petitioner understood
what he was doing and was pleading guilty knowingly and voluntarily.
(Doc. 9-12 at 4).
3. 	Analysis of Petitioner’s habeas claim
The 	state 	court 	reasonably 	applied 	Strickland 	when 	rejecting
Petitioner’s claims of ineffective assistance of counsel. At the time of his
guilty plea, Petitioner was aware of the evidence that the State would
present at a trial. 	He knew that he had the right to challenge the
evidence at trial and make the State prove his guilt beyond a reasonable
doubt. 	With this knowledge, Petitioner decided that it was in his best
interest to enter the guilty plea.
Further, the DNA evidence did not exonerate Petitioner of the
sexual battery charge. 	Although the DNA evidence did not support a
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finding 	of 	penile 	penetration, 	it 	did 	support 	a 	finding 	of 	digital
penetration as charged in Count One. 	With respect to the victim’s
allegedly inconsistent testimony, even if there were some inconsistencies,
in the victim’s version of events, Petitioner failed to show that those
inconsistencies exonerated him of the sexual battery charge.
With respect to Petitioner’s mental health, the trial court discussed
Petitioner’s mental health status and medication with Petitioner and
defense counsel during the plea hearing. The trial court was fully advised
of the fact that Petitioner had been taking psychotropic medications.
(Doc. 9-4 at 8-9). 	And the trial court’s colloquy led it to reasonably
conclude that Petitioner knew what he was doing by entering the plea
and that he freely chose that course of action. A review of the transcript
of the change of plea hearing fully supports the trial court’s finding that
Petitioner entered a knowing and voluntary guilty plea. 	Moreover, as
defense counsel stated at the change of plea hearing, Petitioner had
previously been evaluated by an expert and determined to be competent.
(See Doc. 9-12 at 24).
The state court’s rejection of Petitioner’s challenge to his plea on
grounds of ineffective assistance of counsel was not contrary to, or an
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unreasonable application of, 	Strickland. 	Nor was the state court’s
decision based upon an unreasonable determination of the facts. 	For
these reasons, Petitioner is not entitled to habeas relief on Ground 1B or
Ground 1D.
C. 	Ground 	1C 	(verbatim): 	“Ineffective 	assistance 	of
counsel–seeking continuances that effectively waived
the Petitioner’s speedy trial rights thus violating his
Sixth and Fourteenth Amendment rights to the United
States Constitution.”
In Ground 1C, Petitioner alleges counsel performed ineffectively by
seeking continuances that resulted in a waiver of his speedy trial right
under Florida law. 	(Doc. 1 at 9-10). 	Petitioner describes the following
timeline of the criminal proceedings. 	He was arrested on July 7, 2015.
Counsel deposed the victim, her brother, and the brother’s girlfriend on
October 16, 2015. (Doc. 1 at 9; Doc. 16 at 8). Defense counsel requested
a continuance on November 2, 2015, to conduct “further research.” (Doc.
1 at 10). 	The first DNA report came out on December 30, 2015, which
concluded 	that 	there 	was 	no 	DNA 	evidence 	of 	penile 	penetration.
Florida’s 175-day speedy trial period expired on January 2, 2016. Fla. R.
Crim. P. 3.191. 	On March 17, 2016, the State amended the information
to charge penile or digital penetration. (Doc. 9-12 at 62-63). The second
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DNA report came out on April 15, 2016, which showed the victim’s DNA
on Petitioner’s fingers. (Id. at 57-58). Petitioner entered the guilty plea
on April 25, 2016. (Id. at 10-14, 16-41).
Petitioner alleges that if counsel had not sought continuances, then
the State would have been forced to proceed to trial on the initial charge
of penile penetration. (Doc. 1 at 10). He alleges the State would not have
been able to prove him guilty of that charge. (Id.).
1. 	Petitioner’s Rule 3.850 motion
Petitioner raised this argument in Ground 4 of his Rule 3.850
motion. The state trial court rejected it. (Doc. 9-11 at 12-17). The state
postconviction court noted that much of the initial DNA evidence was not
interpretable 	(thus, 	suggesting 	that 	defense 	counsel 	reasonably
requested more time to investigate). 	(Doc. 9-12 at 6). 	The court also
noted that Petitioner affirmed during the plea hearing that he was
satisfied with counsel’s services, and that counsel did everything he
wanted her to do. (Id.).
2. 	Analysis of Petitioner’s habeas claim
Contrary to Petitioner’s claim, counsel did not perform deficiently
by seeking a continuance. 	See Fayson v. Sec’y, Fla. Dep’t of Corr., 568 F.
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App’x 771, 774 (11th Cir. 2014) (rejecting claim that counsel performed
ineffectively 	by 	seeking 	a 	continuance 	of 	trial). 	More 	specifically,
counsel’s 	decision to move for a continuance was not unreasonable
because the results of the first round of DNA testing had not been
released.8 	It was eminently reasonable for counsel to wait for those
results before proceeding to trial. 	See Russell v. Fla. Dep’t of Corr., No.
3:13cv519, 2015 WL 2338622, at *18-19 (N.D. Fla. May 13, 2015) (finding
that 	counsel 	did 	not 	provide 	ineffective 	assistance 	by 	seeking 	a
continuance where the results of various tests and expert reports had yet
to be received).
Accordingly, 	the 	state 	court’s 	rejection 	of 	Petitioner’s
ineffectiveness claim was not contrary to or an unreasonable application
of 	Strickland. 	It also was not based upon an unreasonable factual
determination. 	For these reasons, Petitioner is not entitled to federal
habeas relief on Ground 1C.
D. 	Ground 	1E 	(verbatim): 	“Ineffective 	assistance 	of
counsel–failure 	to 	conduct 	adequate 	pretrial
investigations–violating 	Petitioner’s 	Sixth 	and
Fourteenth Amendment rights to the United States
Constitution.”
8 Those results did not come out until December 30, 2015.
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In Ground 1E, Petitioner alleges counsel was ineffective for failing
to conduct an adequate investigation. 	(Doc. 1 at 11-12). 	Petitioner
alleges 	counsel 	should 	have 	investigated 	the 	victim’s 	past 	sexual
experiences and then used that information to challenge the State’s
motion in limine to exclude evidence of the victim’s sexual history.
Additionally, Petitioner says counsel should have investigated why the
victim’s brother would have made a false accusation against Petitioner.
Finally, 	Petitioner alleges 	counsel 	should 	have 	consulted 	an expert
regarding 	hymen 	tears. 	(Id. 	at 	11). 	Petitioner 	alleges 	additional
investigation would have led to evidence that proved his innocence and
identified the actual perpetrator of the sexual assault. (Id. at 12).
1. 	Petitioner’s Rule 3.850 motion
Petitioner asserted this ineffective assistance of counsel claim in
Ground 5 of his Rule 3.850 motion. (Doc. 9-11 at 17-20). The state court
rejected Petitioner’s failure-to-investigate claim. (Doc. 9-12 at 6-7). The
court pointed out that Petitioner did not explain the legal basis on which
counsel should have challenged the motion in limine regarding the
victim’s 	sexual 	history. 	Additionally, 	the 	state 	court 	found 	that
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Petitioner had not shown how the outcome of the proceedings would have
been different if counsel had obtained an expert to testify regarding the
healing time for a hymen tear.
2. 	Analysis of Petitioner’s habeas claim
The 	state 	court 	reasonably 	applied 	Strickland 	in 	rejecting
Petitioner’s ineffective assistance of counsel claim. 	Looking first to
Petitioner’s claim that counsel should have identified an expert on hymen
tears, Petitioner’s assertions as to what such an expert would have said
are purely speculative. 	Speculative assertions about what a potential
expert witness would have said are insufficient to support a claim of
ineffective assistance. 	Petitioner has not come forward with any expert
affidavit or other evidence from an expert—all Petitioner has submitted
is speculation as to what an expert would have said had one been found
and called to testify. 	Thus, he is not entitled to habeas relief. See Finch
v. Sec’y, Dep’t of Corr., 643 F. App’x 848, 852 (11th Cir. 2016) (holding
that state court reasonably rejected claim of ineffective assistance based
on counsel’s failure to retain an expert where petitioner did not provide
evidence regarding what an expert would have said if called to testify);
see also White v. Sec’y, Fla. Dep’t of Corr., No. 15-12950-F, 2015 WL
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13936935, at *9 (11th Cir. Dec. 18, 2015) (holding that petitioner’s
speculation that an expert witness would have challenged the state’s
evidence was insufficient to demonstrate ineffective assistance).
Similarly, Petitioner’s allegation that defense counsel failed to
“adequately challenge” the State’s motion in limine regarding the victim’s
sexual 	history 	is 	insufficient 	to 	support 	an 	ineffectiveness 	claim.
Petitioner 	has 	not 	explained 	on 	what 	basis 	counsel 	should 	have
challenged the State’s motion. 	Absent a showing that counsel had a
meritorious basis to challenge the State’s motion, Petitioner has not
made the requisite showing of deficient performance or prejudice. 	See
Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001) (holding that
counsel is not ineffective for failing to raise an objection unless the
petitioner shows that the objection was meritorious). 	Moreover, the
evidence in this case consisted of an eyewitness who saw Petitioner
sexually assaulting the victim, the victim who stated that Petitioner
sexually assaulted her, and evidence that the victim’s DNA was on
Petitioner’s fingers. 	This is not a case where there was a dispute
regarding the source of semen found on the victim or where the sexual
act was allegedly consensual, such that the victim’s sexual history could
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be relevant and possibly admissible under Florida’s rape shield law. 	See
Fla. Stat. § 794.022 (providing that evidence regarding a victim’s sexual
history 	is 	inadmissible 	unless 	such 	evidence 	may 	show 	that 	the
defendant was not the source of semen or in certain situations when
consent is in issue). 	Under the facts of this case, the victim’s sexual
history would have been irrelevant. 	Thus, defense counsel did not
perform deficiently by failing to challenge the State’s motion in limine.
The 	remainder 	of 	Petitioner’s 	failure-to-investigate 	claim 	is
premised upon the factual assertion that DNA testing revealed DNA
from a third party on a hair collected from the victim’s vagina. 	That
factual assertion is contradicted by the record. The DNA report identified
evidentiary exhibit 1J as public hair collected from the victim’s vagina,
and the report concluded that “no DNA results foreign to [the victim]
were found on Exhibits . . . 1J (hair).” (Doc. 9-12 at 56). In other words,
the victim’s DNA was the only DNA found on the hair. 	There was no
DNA evidence showing that the hair belonged to a third party. 	Thus,
counsel was not ineffective for failing to take further steps regarding the
DNA testing of the hair. 	Because Petitioner failed to show that further
investigative efforts would have produced exculpatory evidence, the state
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court’s rejection of Petitioner’s claim was not contrary to, and did not
involve 	an 	unreasonable 	application 	of, 	Strickland. 	Accordingly,
Petitioner is not entitled to habeas relief on Ground 1E.
E. 	Ground 	1F 	(verbatim): 	“Ineffective 	assistance 	of
counsel–failure to investigate Petitioner’s competency
at time of offense–violating his Sixth and Fourteenth
Amendments to the United States Constitution.”
In Ground 1F, Petitioner claims counsel was ineffective for failing
to have him evaluated by a second mental health expert. 	(Doc. 1 at 12-
14). Petitioner acknowledges that one expert evaluated him, but he says
he should have had a second evaluation. 	Moreover, he claims that his
counsel 	should 	have 	had 	him 	evaluated 	for 	a 	possible 	“psychiatric
defense.” Petitioner alleges if counsel had obtained a second evaluation,
then it would have revealed that he was incompetent and that he had a
viable 	“psychiatric 	defense” 	to 	the 	sexual 	battery 	charge. 	This
information, Petitioner says, would have led him to reject the plea
agreement and proceed to trial.
1. 	Petitioner’s Rule 3.850 motion
Petitioner raised this issue as Ground 6 of his Rule 3.850 motion.
(Doc. 9-11 at 20-21). 	Rejecting it, the state court found that defense
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counsel had Petitioner evaluated by an expert who found him competent.
(Doc. 9-12 at 7). The state court further found that Petitioner and counsel
had advised the trial court of Petitioner’s mental health history during
the plea hearing and sentencing. 	Thus, the state court concluded that
Petitioner could not satisfy the Strickland standard.
2. 	Analysis of Petitioner’s habeas claim
The state court’s rejection of Petitioner’s claim was reasonable. To
satisfy the prejudice prong of Strickland, Petitioner needed to show a
reasonable probability that a second mental health evaluation would
have revealed that he was incompetent to stand trial or insane when he
committed the offense. 	Futch v. Dugger, 874 F.2d 1483, 1487 (11th Cir.
1989).
To establish an insanity defense in Florida, a defendant must prove
by clear and convincing evidence that because of his mental disease, he
(1) did not know what he was doing, or (2) knew what he was doing but
did not know that his conduct was wrong. 	Fla Stat. § 775.027. 	“The
constitutional test for competency . . ., is whether the defendant has
sufficient present ability to consult with his lawyer with a reasonable
degree of rational understanding—and whether he has a rational as well
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as factual understanding of the proceeding against him.” 	United States
v. Marks, 156 F.4th 1169, 1174 (2025) (cleaned up).
The Court will start with Petitioner’s competency. 	The record
reflects that the trial court was aware of Petitioner’s mental health
history 	and 	took 	steps 	to 	ensure 	Petitioner 	understood 	what 	was
happening. 	During the plea hearing, Petitioner assured the trial court
that his mind was clear and that he understood his plea discussions with
counsel and everything that was discussed during the plea hearing. (Doc.
9-12 at 22-24). 	Petitioner promised that he would notify the trial judge
if was unable to understand the proceedings or became confused. (Id. at
23-24). Petitioner reaffirmed that his mind was clear. (Id. at 24).
During the plea hearing, counsel stated that Dr. Blandino had
evaluated Petitioner and found him competent to proceed. (Id.). Counsel
affirmed to the trial judge that Petitioner seemed lucid, conversant, and
appeared 	to 	understand 	the 	plea. 	(Id. 	at 	24-25). 	The 	trial 	court
reiterated 	(and 	Petitioner 	agreed) 	that 	if 	any 	time 	Petitioner 	had
questions 	or 	problems 	understanding 	what 	was 	happening, 	then
Petitioner should alert the court. 	(Id. at 25-26). 	Here is the relevant
colloquy:
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THE 	COURT: 	So 	it’s 	important 	that 	if 	you 	hear
something and you’re a little confused, I don’t want you
to wait until later I want you to raise it now. 	And
sometimes folks claim, Well, I didn’t want to—Judge
might have been intimidating, or something, I didn’t
want to disappoint somebody. 	This is about making
sure you know what you’re doing here today, okay?
THE DEFENDANT: Yes, sir.
(Id. at 26). 	Throughout the proceedings, Petitioner in no way expressed
confusion or a lack of understanding.
The record reveals that Dr. Blandino evaluated Petitioner three
months before the guilty plea. (Doc. 9-15 at 9-14). Dr. Blandino reported
that 	Petitioner 	was 	“able 	to 	demonstrate 	an 	adequate 	factual 	and
rational 	understanding 	of 	the 	various 	trial 	competency 	terms 	and
concepts” and “[a]t a minimum . . . appears to possess the capacity to
resolve his current legal situation through a plea-agreement.” (Id. at 14).
Dr. Blandino’s report gave no indication that Petitioner may not have
known what he was doing at the time of the offense, may not have known
the consequences of his conduct, or may not have known that what he
was doing was wrong.
The state court reasonably concluded that Petitioner failed to show
a reasonable probability that an evaluation of his sanity or a second
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evaluation of his competency would have affected the outcome. Nothing
in the record supports the possibility that a second expert evaluating
Petitioner’s competency would have reached a different conclusion than
the one reached by Dr. Blandino. 	Likewise, nothing in the record
supports Petitioner’s belief that an evaluation of his mental state at the
time of the offense would have supported an insanity defense. For these
reasons, 	the 	state 	court 	reasonably 	rejected 	Petitioner’s 	ineffective
assistance of counsel claim. 	See Mincey v. Head, 206 F.3d 1106, 1144-46
(11th Cir. 2000) (finding counsel was not ineffective for failing to retain
an independent mental health expert after a court-appointed mental
health expert issued a report that was unfavorable to the petitioner); see
also Newland v. Hall, 527 F.3d 1162, 1213-14 (11th Cir. 2008) (explaining
that counsel did not perform ineffectively by failing to seek a second
opinion regarding the petitioner’s mental health issues).
Petitioner has not demonstrated that the state court’s rejection of
his ineffectiveness claim was contrary to or an unreasonable application
of Strickland. Nor has he shown that it was based upon an unreasonable
factual determination. 	For these reasons, Petitioner is not entitled to
habeas relief on Ground 1F.
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F. 	Ground 	Two 	(verbatim): 	“Petitioner 	entered
involuntary 	plea 	in 	violation 	of 	his 	Fifth 	and
Fourteenth Amendment rights–U.S. Constitution.”
In Ground 2, Petitioner has alleged that the cumulative effect of the
errors in Grounds 1A through 1F rendered his guilty plea involuntary.
(Doc. 1 at 16-17; Doc. 16 at 13-15). 	Petitioner raised this claim in his
Rule 3.850 motion, and the state trial court rejected it. 	(Doc. 9-12 at 8).
The state court reasoned that Petitioner’s claim of cumulative error failed
because he had not shown any individual constitutional errors. The First
DCA summarily affirmed the decision. (Doc. 9-14).
Under 	the 	cumulative 	error 	doctrine, 	“an 	aggregation 	of 	non-
reversible errors” can result in a violation of the Constitution and
mandate reversal. 	Morris v. Sec’y, Fla. Dep’t. of Corr., 677 F.3d 1117,
1132 (11th Cir. 2012) (cleaned up). 	If there has been “no error in any of
the 	trial 	court’s 	rulings, 	the 	argument 	that 	cumulative 	trial error”
requires reversal “is without merit.” 	Id. (cleaned up).
For the reasons above, the Court has found no individual error with
respect to any claim reviewed under § 2254(d) (Grounds 1A through 1F).
In the absence of any actual error, the state court reasonably rejected
Petitioner’s “cumulative effect” claim as without merit. 	See Anderson v.
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Sec’y, Fla. Dep’t. of Corr., No. 20-12451-G, 2021 WL 4048594, at *2 (11th
Cir. 	Feb. 	12, 	2021) 	(rejecting 	petitioner’s 	“cumulative-error” 	claim
because there were no errors to accumulate).
VI. 	Conclusion
For the reasons above, Petitioner’s § 2254 petition should be denied.
VII. 	Certificate of Appealability
Rule 11(a) of the Rules Governing Section 2254 Cases in the United
States District Courts provides that “[t]he district court must issue or
deny a certificate of appealability when it enters a final order adverse to
the applicant,” and if a certificate is issued “the court must state the
specific issue or issues that satisfy the showing required by 28 U.S.C.
§ 2253(c)(2).” 28 U.S.C. § 2254 Rule 11(a). A timely notice of appeal must
still be filed, even if the Court issues a certificate of appealability. 	28
U.S.C. § 2254 Rule 11(b).
“Section 2253(c) permits the issuance of a COA only where a
petitioner 	has 	made 	a 	‘substantial 	showing 	of 	the 	denial 	of 	a
constitutional right.’” 	Miller-El v. Cockrell, 537 U.S. 322, 336 	(2003)
(quoting § 2253(c)(2)). 	“At the COA stage, the only question is whether
the applicant has shown that ‘jurists of reason could disagree with the
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district court’s resolution of his [or her] constitutional claims or that
jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.’” 	Buck v. Davis, 580 U.S. 100, 115
(2017) (citing Miller-El, 537 U.S. at 327). 	The petitioner here cannot
make that showing. 	Therefore, the undersigned recommends that the
district court deny a certificate of appealability in its final order.
The second sentence of 	Rule 11(a) provides: 	“Before entering the
final order, the court may direct the parties to submit arguments on
whether a certificate should issue.” Thus, if there is an objection to this
recommendation by either party, that party may bring this argument to
the attention of the district judge in the objections permitted to this
report and recommendation.
Accordingly, it is respectfully RECOMMENDED that:
1. 	The petition for habeas corpus (Doc. 1) be DENIED.
2. 	A certificate of appealability be DENIED.
At Pensacola, Florida, this 25th day of November 2025.
/s/ Zachary C. Bolitho
Zachary C. Bolitho
United States Magistrate Judge
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Notice to the Parties
Objections to these proposed findings and recommendations must
be 	filed 	within 	fourteen 	days 	of 	the 	date 	of 	the 	Report 	and
Recommendation. 	Any 	different 	deadline 	that 	may 	appear 	on 	the
electronic docket is for the Court’s internal use only and does not control.
An objecting party must serve a copy of the objections on all other parties.
A 	party 	who 	fails 	to 	object 	to 	the 	magistrate 	judge’s 	findings 	or
recommendations contained in a report and recommendation waives the
right 	to 	challenge 	on 	appeal 	the 	district 	court’s 	order 	based 	on
unobjected-to factual and legal conclusions. 	See 11th Cir. Rule 3-1; 28
U.S.C. § 636.
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