HEERLING v. DIXON

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
SHANE MICHAEL HEERLING,
Petitioner,
vs. 	Case No.: 4:23cv178/AW/ZCB
RICKY DIXON,
Respondent.
___________________________________/
REPORT AND RECOMMENDATION
This is a federal habeas corpus case filed under 28 U.S.C. § 2254.
(Doc. 1). Petitioner, Shane Heerling, is serving a sentence in the Florida
Department of Corrections for sexual battery of a physically helpless
victim. 	Respondent has answered the 	petition, 	and Petitioner has
replied. 	(Doc. 12; Doc. 16). 	For the reasons below, Petitioner is not
entitled to habeas relief.1
I. 	Factual Background
The 	events 	giving 	rise 	to 	Petitioner’s 	conviction 	occurred 	on
February 23, 2017. The evidence presented at trial showed that on that
1 The Court believes this matter may be resolved without an evidentiary
hearing. Rule 8(a), Rules Governing Section 2254 Cases.
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date, a woman named Niyah was hosting a party at her house. (Doc. 12-
6 at 35-39). The party spilled over into the next morning. (Id. at 35-36).
Among the partygoers were N.J., Lindsey, and Trevor. (Id. at 35, 37-39,
61, 104, 156-57). They drank a lot of alcohol, and some of them (including
N.J.) consumed illegal drugs. (Id. at 36-38, 156-57). N.J., Niyah, Trevor,
and Lindsey eventually ended up in Niyah’s bedroom. (Id. at 38-39, 105).
There, Trevor gave N.J. a shoulder and back massage. (Id. at 37-38, 105).
Petitioner—a friend of N.J.’s and others in the group—arrived at
Niyah’s party late. (Id. at 105, 156-57). Upon arriving, Petitioner joined
the group in Niyah’s bedroom. 	(Id.). 	Like the others, Petitioner had
consumed illegal drugs that night. 	(Id. at 156). 	When Petitioner came
into the bedroom, N.J. was almost asleep. (Id. at 38, 105-06). In fact, she
did not recall seeing Petitioner or speaking to him. 	(Id. at 38). At some
point, Niyah and Trevor left the bedroom to go downstairs. 	(Id. at 106).
When they left, Trevor recalled that N.J. was asleep, but Petitioner was
awake. 	(Id. at 106-07). 	After Niyah and Trevor left the bedroom, N.J.
and Petitioner had sexual intercourse. 	But the two offered different
accounts of the circumstances leading to the intercourse.
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N.J. testified that she was asleep and did not consent to the sexual
intercourse. 	(Id. at 46). 	According to N.J., she was awakened from her
sleep by the feeling of her vagina being penetrated from behind. 	(Id. at
39-42). 	When she awoke, she was lying on her left side. 	Her leggings
had been pulled down around her thighs. (Id.). N.J. turned slightly and
saw Petitioner behind her. (Id.). N.J. asked Petitioner where Niyah was.
(Id.). Petitioner then pulled up N.J.’s leggings and responded that Niyah
was downstairs. 	(Id.). 	Next, N.J. “beelined” for the bedroom door and
went downstairs. (Id. at 42).
Once downstairs, N.J. told Niyah and Trevor that Petitioner had
raped her. (Id. at 42-43). Niyah described N.J. as really upset and crying.
(Id. 	at 79-80). 	Lindsey heard N.J. screaming and crying and went
downstairs. 	(Id. at 64-65). 	Lindsey also described N.J. as very upset.
(Id. at 65). After talking with N.J., Niyah and Trevor went upstairs and
confronted Petitioner. 	(Id. at 80). 	Petitioner tried to explain what had
happened, but Niyah told him to leave. (Id. at 80-81).
Several hours later, N.J. called the police and went to a medical
clinic for a sexual assault examination and drug test. 	(Id. at 43-45). 	A
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nurse collected swabs from N.J.’s genital area and sent them to a lab for
DNA testing. 	(Id. at 89-90, 95, 121-22, 127-29). 	Although the testing
revealed the presence of male DNA, there was insufficient DNA to
provide more identifying information. 	(Id. at 96-99). 	The drug test
showed the presence of cocaine, marijuana, and Xanax in N.J.’s system.
(Id. at 47-48, 129-30, 135-36).
Petitioner’s 	version 	of 	events 	differed 	significantly 	from 	that
provided by N.J. 	According to Petitioner, N.J. was “awake and she did
consent” to sexual intercourse. 	(Id. at 157). 	Petitioner explained that
they were cuddling, when N.J. started “grinding” on his genital area. (Id.
at 158). 	Petitioner perceived N.J.’s “grinding” as “want[ing] something
sexual,” which led to the two having intercourse. (Id. at 158, 162).
According to Petitioner, “out of nowhere” N.J. got on her phone, got
up, and then walked out of the bedroom. 	(Id. at 162). 	Petitioner knew
that N.J. had been drinking alcohol heavily that night. 	(Id. at 156-58).
But he testified that N.J. could “drink . . . a lot and still be functioning.”
(Id. at 158). 	He described N.J. as “buzzed” but not intoxicated. 	(Id. at
160). 	Petitioner said that in the past, he and N.J. had kissed, “felt on
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each other,” and cuddled. (Id. at 157, 159). But they had not previously
had sexual intercourse. (Id. at 159).
Petitioner was subsequently charged with sexual battery on a
physically helpless victim. He went to trial, and a jury convicted him as
charged. 	(Doc. 12-3 at 71-72; Doc. 12-6). 	The state court sentenced him
to 	nine 	years 	imprisonment 	followed 	by 	ten 	years 	of 	sex 	offender
probation. (Doc. 12-5 at 8-17).
II. 	Procedural History
Following his conviction, Petitioner appealed to the Florida First
District Court of Appeal (First DCA). 	(Doc. 12-7). 	That court affirmed.
(Doc. 12-10). Petitioner then filed a motion for postconviction relief under
Florida Rule of Criminal Procedure 3.850. (Doc. 12-26 at 4-29). The trial
court denied the motion, and Petitioner appealed to the First DCA. 	(Id.
at 39-42, 278-79). The First DCA summarily affirmed. (Doc. 12-27).
Petitioner then turned his postconviction efforts to federal court by
filing the current habeas corpus petition under 28 U.S.C. § 2254. 	(Doc.
1). 	His petition presents one due process claim and four ineffective
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assistance of counsel claims. 	Each will be discussed below, but first the
Court will summarize the legal standard for § 2254 petitions.
III. 	Legal Standard for 28 U.S.C. § 2254 Petitions
Under § 2254(d), a federal court may invalidate a state criminal
conviction 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 court. 	Shinn v. Ramirez, 596 U.S. 366, 377 (2022).
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
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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).
IV. 	Discussion
A. 	Prosecutorial misconduct claim
In Ground One, Petitioner claims that he was denied a fair trial and
his due process rights were violated because the prosecutor committed
misconduct during closing arguments. 	(Doc. 1 at 5). 	More specifically,
Petitioner claims that the prosecutor improperly appealed to the jurors’
sympathies and “created hostile emotions toward” Petitioner. 	(Id.).
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Petitioner raised this argument on direct appeal, and the First DCA
summarily rejected it. (Doc. 12-7 at 15; Doc. 12-10).
Although the First DCA did not explain the reasons behind its
rejection of Petitioner’s argument,2 this Court presumes that the First
DCA adjudicated the claim on the merits.3 	Harrington v. Richter, 562
U.S. 86, 99 (2011). 	That presumption has not been overcome because
there is no “reason to think some other explanation for the state court’s
decision is more likely.” 	Id. at 99-100. 	Thus, the question before this
Court 	today 	is 	whether 	the 	rejection 	of 	Petitioner’s 	prosecutorial
misconduct claim was either 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.
A 	lengthy 	explanation 	is 	not 	necessary 	because 	this 	issue 	is
controlled by the Eleventh Circuit’s decision in Reese v. Sec’y, Fla. Dep’t
2 Petitioner did not raise the issue at trial, so the “look through” doctrine
does not apply. 	See generally Wilson v. Sellers, 584 U.S. 122, 125 (2018)
(explaining the “look through” doctrine).
3 The same applies for all of Petitioner’s claims because the First DCA
summarily affirmed the denial of Petitioner’s Rule 3.850 motion.
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of Corr., 675 F.3d 1277, 1288 (11th Cir. 2012). 	The Reese court rejected
a habeas petitioner’s claim that he was entitled to relief based on a
prosecutor’s improper comments during closing arguments. In reaching
that conclusion, the Eleventh Circuit explained that “the Supreme Court
has never held that a prosecutor’s closing arguments were so unfair as to
violate” a defendant’s rights. Id. Because “the Supreme Court has never
held that a prosecutor’s closing arguments, in a vacuum, were so unfair
as to violate the right of a defendant to due process[,]” this Court “can’t
say that the [Florida state courts] unreasonably determined that the
prosecutor’s closing argument” was not “so unfair as to violate his right
to due process.” Pace v. Warden, No. 16-10868, 2023 WL 3376683, at *35
(11th Cir. May 11, 2023) (cleaned up and relying on Reese to reject
argument 	that 	petitioner 	was 	entitled 	to 	habeas 	relief 	based 	on
prosecutorial 	misconduct 	during 	closing 	argument). 	Accordingly,
Petitioner is not entitled to habeas relief on Ground One.4
4 For what it is worth, Petitioner’s argument would fail even under de
novo review. None of the prosecutor’s comments during closing argument
were improper. The prosecutor fairly commented on the evidence and did
not improperly urge the jury to decide the case on a basis other than the
facts and the law. 	The prosecutor did not vouch for the witness or
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B. 	Ineffective assistance of counsel claims
In Grounds Two through Five, Petitioner seeks relief based on
ineffective assistance of trial counsel. 	Ineffective assistance of counsel
claims are governed by Strickland v. Washington, 466 U.S. 668 (1984).
To prevail on an ineffective assistance claim, a petitioner must show that
(1) counsel’s performance was constitutionally deficient, and (2) prejudice
resulted. 	Id. at 687.
Under 	the 	deficiency 	prong, 	the 	inquiry 	focuses 	on 	“whether
counsel’s assistance was reasonable considering all the circumstances.”
Id. 	at 	688. 	Trial 	counsel 	is 	“strongly 	presumed 	to 	have 	rendered
adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.” 	Id. at 690. 	As for the prejudice
prong, the inquiry focuses on whether the petitioner has shown there is
a “reasonable probability” that the outcome would have been different
absent counsel’s deficient performance. Id. at 694. To make the prejudice
improperly bolster the witness’s testimony. 	Thus, there is no merit to
Petitioner’s prosecutorial misconduct argument.
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showing, the “likelihood of a different result must be substantial, not just
conceivable.” 	Harrington v. Richter, 562 U.S. 86, 112 (2011).5
Having set forth the applicable standard, the Court will now apply
it to Petitioner’s ineffective assistance of counsel claims.
1. 	Ground Two
In Ground Two, Petitioner claims that his trial counsel, Attorney
Todman, was ineffective by failing to assert a defense based on N.J.’s
state of mind at the time of the incident. (Doc. 1 at 7-8). More specifically,
Petitioner argues that Attorney Todman should have argued that N.J.’s
drug use affected her state of mind at the time of the incident.
Petitioner raised this issue in his state court Rule 3.850 motion, and
the trial court rejected it. (Doc. 12-26 at 5-8, 39-40). Petitioner appealed,
5 Both the Strickland standard and the standard for relief under § 2254
are “highly deferential.” 	Richter, 562 U.S. at 105. And when—in a case
like the current one—“the two 	apply in tandem, 	review is doubly”
deferential. 	Id. (cleaned up). 	The Supreme Court has warned that
“habeas 	courts 	must 	guard 	against 	the 	danger 	of 	equating
unreasonableness 	under 	Strickland[ʼs]” 	deficient 	performance 	prong
with “unreasonableness under § 2254(d).” 	Id. 	Thus, “[w]hen § 2254(d)
applies, the question is not whether counsel’s actions were reasonable.
The question is whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.” 	Id.
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and the First DCA summarily affirmed. (Doc. 12-27). Because the First
DCA’s decision was not accompanied by reasons, this Court must “look
through” to the trial court’s rationale.6 	Wilson, 584 U.S. at 125. 	Here,
the trial court rejected Petitioner’s ineffective assistance claim because
Attorney Todman had thoroughly explored the issue of N.J.’s drug use
and had argued to the jury that her drug use had impacted her state of
mind at the time of the incident. 	(Doc. 12-26 at 39-40). 	Thus, the trial
court found that Petitioner’s ineffective assistance argument was refuted
by the record. (Id. at 39).
The 	issue 	before this Court today is whether the rejection of
Petitioner’s 	ineffective 	assistance 	claim 	was 	either 	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). 	Resolving that issue requires the Court to ask
whether “some fairminded jurists could agree with the state court’s
6 The same is true with respect to Petitioner’s other claims of ineffective
assistance 	of 	counsel—for 	all 	of 	those 	claims, 	the 	Court 	will 	“look
through” to the state trial court’s decision on Petitioner’s Rule 3.850
motion.
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decision[.]” 	Holsey v. Warden, 694 F.3d 1230, 1257 (11th Cir. 2012)
(cleaned up). 	If some fairminded jurists could, then Petitioner is not
entitled to habeas relief.
Here, fairminded jurists could easily agree with the state court’s
finding that Attorney Todman’s performance was not deficient. Contrary
to Petitioner’s allegations, Attorney Todman raised the issue of N.J.’s
drug use and argued that her use of drugs was relevant to the issue of
whether she consented to sexual intercourse with Petitioner. The record
shows that Attorney Todman cross-examined N.J. about her use of
Xanax, cocaine, marijuana, and alcohol on the night of the party. 	(Doc.
12-6 at 47-48, 54). 	Attorney Todman also asked N.J. about her regular
(almost daily) use of drugs, including Xanax, marijuana, and cocaine.
(Id. at 54-55). 	Attorney Todman also raised the issue of N.J.’s drug use
and intoxication with other witnesses who were called by the prosecution.
(Id. at 68-70, 87-88, 112-13, 131-32, 135). 	Moreover, Petitioner himself
testified regarding N.J.’s drug use. (Id. at 155-58).
In Attorney Todman’s closing argument, he repeatedly stressed
N.J.’s drug use. He argued that the prosecution could not prove its case
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because N.J. had taken drugs, which impacted her ability to know
whether she had or had not consented. 	(Id. at 195). 	He argued that
having a “cocktail of drugs in her system” may have resulted in N.J.
making a “decision that she regrets later on.” 	(Id. at 200). 	Attorney
Todman further argued that “when you’re on a cocktail of drugs and
alcohol at a party, you may not know how to control yourself.” 	(Id. at
203). And he summed up his argument by stating that the case was about
“illegal drugs, alcohol, and regret[.]” (Id. at 210).
In light of all that, fairminded jurists could agree with the state
postconviction 	court’s 	rejection 	of 	Petitioner’s 	claim 	that 	Attorney
Todman performed ineffectively by failing to assert a defense based on
the victim’s drug use and state of mind. As the state postconviction court
correctly found, the trial transcript refutes Petitioner’s claim and shows
that Attorney Todman raised the issues Petitioner says he should have
raised. 	Because the state postconviction court’s rejection of Petitioner’s
ineffective 	assistance 	of 	counsel 	claim 	was 	not 	contrary 	to, 	or 	an
unreasonable application of, U.S. Supreme Court precedent, Petitioner is
not entitled to habeas relief on Ground Two.
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2. 	Ground Three
In Ground Three, Petitioner claims that Attorney Todman was
ineffective by failing to impeach N.J.’s credibility with evidence of her
intoxication on the night in question and her memory lapse. (Doc. 1 at 9-
11). Petitioner raised this claim in his Rule 3.850 motion. (Doc. 12-26 at
9-14). 	The state trial court rejected Petitioner’s argument, finding that
the trial transcript refuted Petitioner’s claim. 	(Id. at 40-41). 	Petitioner
appealed, and the First DCA summarily affirmed. (Doc. 12-27).
Here again, the question for this Court is whether the state court’s
determination 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). Because “some fairminded
jurists could agree with the state court’s decision,” 	Holsey, 694 F.3d at
1257, Petitioner is not entitled to habeas relief.
The trial transcript reveals that Attorney Todman cross-examined
N.J. regarding her intoxication and use of alcohol and drugs. 	Attorney
Todman specifically asked N.J. how much she had to drink and what
drugs she had taken. (Doc. 12-6 at 53-55). Attorney Todman also asked
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N.J. whether she recalled certain things, including the time that she
went to sleep and the time that the rape occurred. 	(Id. at 49, 52). 	And
Attorney Todman asked other witnesses about N.J.’s level of intoxication.
(Id. at 70, 83, 86). 	Moreover, Attorney Todman repeatedly emphasized
those issues in his closing argument. (Id. at 195-97, 199, 201).
Because 	fairminded 	jurists 	could 	agree 	with 	the 	state
postconviction court’s rejection of Petitioner’s claim that counsel provided
ineffective 	assistance 	by 	failing 	to 	impeach 	N.J. 	regarding 	her
intoxication and memory lapse, Petitioner is not entitled to habeas relief
on Ground Three.
3. 	Ground Four
In Ground Four, Petitioner claims that Attorney Todman was
ineffective by failing to impeach N.J.’s testimony that she and Petitioner
never had a romantic relationship. 	(Doc. 1 at 12-14). 	Petitioner raised
this claim in his Rule 3.850 motion. (Doc. 12-26 at 15-20). The state trial
court rejected Petitioner’s argument. 	(Id. at 41). 	In doing so, the trial
court found that the transcript refuted Petitioner’s claim because it
showed 	that 	Attorney 	Todman 	cross-examined 	N.J. 	regarding 	her
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romantic relationship with Petitioner. (Id.). Petitioner appealed, and the
First DCA summarily affirmed. (Doc. 12-27).
As with the other arguments above, the question for this Court is
whether the state court’s determination 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). Because “some fairminded jurists could agree with the state
court’s decision,” 	Holsey, 694 F.3d at 1257, Petitioner is not entitled to
habeas relief.
Like Petitioner’s other claims, the trial transcript demonstrates
that Attorney Todman actually did what Petitioner says he should have
done. Attorney Todman cross-examined N.J. about her relationship with
Petitioner. 	(Doc. 12-6 at 48-49). 	He asked N.J. whether she had ever
kissed Petitioner, and she stated she could not recall. 	(Id. at 49). 	He
asked N.J. whether she had previously spent time with Petitioner at his
house. 	(Id.). 	Additionally, Attorney Todman called two witnesses who
testified about the relationship between Petitioner and N.J. (Id. at 139-
40, 147-48). 	One of those witnesses described the relationship between
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Petitioner and N.J. as “friends with benefits” and stated that he had
previously seen Petitioner and N.J. kissing and groping each other. (Id.
at 139-40). 	The other witness testified that N.J. had spent the night at
Petitioner’s 	house 	on 	three 	occasions. 	(Id. 	at 	147). 	Furthermore,
Attorney Todman called Petitioner to testify, and Petitioner stated that
he and N.J. had kissed, cuddled, and “felt on each other” before. 	(Id. at
157, 159).
Put simply, Attorney Todman made reasonable and consistent
efforts throughout the trial to show the jury that N.J. and Petitioner had
more than a platonic relationship. Thus, a fairminded jurist could agree
with 	the 	state 	postconviction 	court 	that Attorney Todman 	was not
ineffective 	for 	failing 	to 	impeach 	N.J. 	regarding 	her 	romantic
relationship with Petitioner. 	For that reason, Petitioner is not entitled
to habeas relief on Ground Four.
4. 	Ground Five
In Ground Give, Petitioner makes two ineffective assistance of
counsel arguments. 	(Doc. 1 at 16-18). 	First, Petitioner claims that
defense counsel was ineffective by not objecting to hearsay testimony
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from the nurse who conducted N.J.’s sexual assault exam. 	Second,
Petitioner claims that defense counsel was ineffective for not seeking a
judgment of acquittal (JOA) at the close of the prosecution’s case. 	The
Court will address each claim in turn.
a. 	Hearsay argument
Petitioner’s hearsay argument centers on the testimony of the
sexual assault examiner, Nurse Lynda Tiefel. 	As part of her testimony,
Nurse Tiefel explained what N.J. told her had happened. 	(Doc. 12-6 at
122-130). That testimony included a statement identifying Petitioner as
the assailant. 	(Id. at 130). 	Nurse Tiefel testified that obtaining the
details of the incident from the victim helps her identify what body parts
need examined and what areas need tested for evidence. (Id. at 124, 126-
29).
In his Rule 3.850 motion, Petitioner argued that counsel was
ineffective for not making a hearsay objection to Nurse Tiefel’s testimony
about what N.J. told her. (Doc. 12-26 at 21-26). The state postconviction
court rejected that argument, finding that counsel had no basis to object
because Fla. Stat. § 90.803(4) allows the admission of statements made
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for the purpose of medical diagnosis. (Id. at 41). As for N.J. telling Nurse
Tiefel that Petitioner was the assailant, the state postconviction court
found that the statement was admissible under Fla. Stat. § 90.801(2)(c),
which allows statements identifying a person after perceiving the person
to be admitted, so long as the declarant testifies at trial and is subject to
cross-examination—something that occurred here. 	(Id.). 	The question
before this Court today is whether these determinations by the state
postconviction court were contrary to, or an involved an unreasonable
application of, U.S. Supreme Court precedent. The answer is no.
When an ineffective assistance claim involves a question of state
law, a federal habeas court must defer to the state court’s construction of
its own law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (explaining
that “it is not the province of a federal habeas court to reexamine state-
court determinations on state-law questions”). 	This means that if the
Florida courts “already ha[ve] told us how the issues would have been
resolved 	under 	Florida 	state 	law 	had 	[trial 	counsel] 	done 	what
[Petitioner] argues he should have done[,]” then “federal habeas courts
should not second-guess [the state courts] on such matters.” 	Herring v.
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Sec’y, Dep’t of Corrs., 397 F.3d 1338, 1354-55 (11th Cir. 2005) (cleaned
up).
Here, the Florida state postconviction court found that Petitioner’s
attorney was not ineffective for failing to object because Nurse Tiefel’s
testimony 	was 	admissible 	under 	the 	Florida 	Rules 	of 	Evidence.
Consistent with the precedent cited above, this Court will defer to the
state court’s determination that the testimony was admissible under
state law. 	And because it is “not ineffective assistance of counsel to fail
to make an objection that is not due to be sustained[,]” Petitioner is not
entitled to habeas relief. 	Meders v. Warden, Ga. Diagnostic Prison, 911
F.3d 1335, 1354 (11th Cir. 2019); see also Preston v. Sec’y, Dep’t of Corr.,
2018 WL 8061783, at *5-7 (11th Cir. Nov. 16, 2018) (single judge order)
(denying 	certificate 	of 	appealability 	because 	the 	state 	court’s
“determination that this testimony was admissible and that an objection
would 	have 	been 	overruled 	binds 	this 	Court” 	when 	reviewing 	an
ineffective assistance of counsel claim). 	Accordingly, this Court should
reject Petitioner’s claim that counsel performed ineffectively by failing to
object to Nurse Tiefel’s testimony on hearsay grounds.
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b. 	Failure to seek JOA argument
The Court will now turn to Petitioner’s claim that counsel was
ineffective for failing to move for a JOA at the close of the prosecution’s
case. 	Petitioner’s claim rests on the idea that there was insufficient
evidence to prove his guilt and, therefore, the trial court would have
granted a motion for JOA had defense counsel made one.
Petitioner presented this claim in his Rule 3.850 motion. (Doc. 12-
26 at 21-26). The state postconviction court rejected it because a motion
for JOA would have been denied had one been made. 	(Id. at 42). 	Here
again, the question is whether the state court’s determination was
contrary to, or involved an unreasonable application of, U.S. Supreme
Court precedent. As before, the answer is no.
Similar to the hearsay argument above, the issue of whether the
prosecution introduced sufficient evidence of a state 	law offense to
overcome a JOA motion is a matter of state law. 	Here, the state
postconviction court concluded that the evidence was sufficient. 	And
when the state courts have already said how the issue would have been
resolved under state law had trial counsel done what Petitioner argues
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he should have done, a federal habeas court will not second-guess them.
Herring, 397 F.3d at 1354-55. 	This Court, therefore, defers to the state
postconviction court’s determination that there was sufficient evidence to
overcome a motion for JOA had one been made by Petitioner’s counsel.7
See Williams v. Fla., No. 16-15863, 2018 WL 11300394, at *6 (11th Cir.
Oct. 12, 2018) (single judge order) (stating that “in denying the Rule 3.850
motion, the state court determined that, under state law, the evidence
was sufficient to be presented to the jury, and this court must defer to
7 In any event, the Court agrees with the state court’s finding that the
prosecution introduced sufficient evidence to survive a motion for JOA.
Petitioner was charged with sexual battery of a physically helpless
victim. To convict Petitioner of that offense, the prosecution had to prove
three elements. (Doc. 12-6 at 173-74). First, Petitioner penetrated N.J.’s
vagina with his penis. 	Second, N.J. was physically helpless to resist.
Third, N.J. did not consent. 	(Id.). 	The trial transcript shows that there
was sufficient evidence on each of these elements. The first element was
undisputed. As for the second element, N.J. testified that she was asleep
when Petitioner penetrated her vagina. 	(Id. at 38-39). 	That testimony
was corroborated by other witnesses who testified that they saw N.J.
sleeping before the incident occurred. 	(Id. at 77, 106). 	Moving to the
third element, N.J. testified that she did not consent to sexual intercourse
with Petitioner. 	(Id. at 46). 	Thus, the prosecution presented sufficient
evidence to overcome a motion for JOA and counsel was not ineffective
for failing to seek a JOA. 	See Duran v. Walker, 223 F. App’x 865, 872
(11th Cir. 2007) (stating that the “victim’s testimony as to forcible
penetration was alone sufficient to support the conviction” on the charge
of rape).
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the state court’s determinations regarding state law”); see also Combs v.
Sec’y, Dep’t of Corr., No. 19-14406-G, 2020 WL 2319889, at *2 (11th Cir.
Mar. 6, 2020) (single judge order) (same). 	Because counsel cannot be
ineffective 	for 	failing 	to 	file 	a 	meritless 	motion, 	the 	Court 	rejects
Petitioner’s claim.
V. 	Conclusion
For the reasons above, Petitioner is not entitled to habeas relief
under 28 U.S.C. § 2254.
VI. 	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).
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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
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.
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Accordingly, it is respectfully RECOMMENDED that:
1. 	Petitioner’s 28 U.S.C. § 2254 petition (Doc. 1) be DENIED
and this case be DISMISSED.
2. 	A certificate of appealability be DENIED.
At Pensacola, Florida, this 22nd day of April 2026.
/s/ Zachary C. Bolitho
Zachary C. Bolitho
United States Magistrate Judge
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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