United States District Court, M.D. Florida, Tampa Division
Charlene Edwards Honeywell United States District Judge
Caraballo (“Caraballo”), a Florida prisoner
proceeding pro se, filed a petition for writ of
habeas corpus under 28 U.S.C. Section 2254. (Doc. 1) He
challenges his convictions for sexual battery and lewd
battery entered by the Circuit Court for the Tenth Judicial
Circuit for Polk County, Florida. The Respondent filed a
response and supporting exhibits. (Docs. 11, 14) Caraballo
has not filed a reply. The Respondent concedes the petition
is timely. (Doc. 11 at 4) Upon review, the petition must be
was charged with sexual battery on a child less than 12 years
of age (count one), lewd molestation of a child 12 years of
age or older but under 16 years of age (count two), and lewd
battery on a child 12 years of age or older but under 16
years of age (count three). The charges stem from alleged
incidents of Caraballo's sexual abuse of A.O. at
Caraballo's house and apartment.
was tried by jury and found guilty of counts one and three as
charged. He was found not guilty on count two. Caraballo was
sentenced to life in prison on his sexual battery conviction
and to a concurrent 15-year prison term on his lewd battery
conviction. The Florida appellate court per curiam
affirmed the judgment without written opinion. Caraballo
v. State, 965 So.2d 1148 (Fla. 2d DCA 2007) [table].
filed a pro se petition for writ of habeas corpus in
which he alleged his appellate counsel rendered ineffective
assistance on direct appeal. (Ex. 7) The State responded (Ex.
8), and the Florida appellate court denied the petition
without elaboration. Caraballo v. State, 988 So.2d
1097 (Fla. 2d DCA 2008) [table].
raised five claims of ineffective assistance of counsel in a
pro se motion for postconviction relief filed under
Rule 3.850 of the Florida Rules of Criminal Procedure. (Ex.
11) The state trial court summarily denied two of
Caraballo's claims; the remaining claims were denied
after an evidentiary hearing. (Exs. 12, 15, 16) The Florida
appellate court per curiam affirmed without
written opinion. Caraballo v. State, 121 So.3d 46
(Fla. 2d DCA 2013) [table].
GOVERNING LEGAL PRINCIPLES
EXHAUSTION AND PROCEDURAL DEFAULT
a federal court may grant habeas relief to a state prisoner,
the prisoner must exhaust his remedies in state court. 28
U.S.C. § 2254(b)(1)(A). Exhaustion of state remedies
requires that the state prisoner “fairly
presen[t]” federal claims to the state courts in order
to give the State the “‘opportunity to pass upon
and correct' alleged violations of its prisoners'
federal rights[.]” Duncan v. Henry, 513 U.S.
364, 365 (1995) (quoting Picard v. Connor, 404 U.S.
270, 275 (1971)). To provide the State with the necessary
“opportunity, ” a state prisoner must fairly
present his claim in each appropriate state court.
Baldwin v. Reese, 541 U.S. 27, 29 (2004). See
also O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999) (holding that state prisoners “must give the
state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the
State's established appellate review process”). A
petitioner must present his claims to the state courts such
that the reasonable reader would understand each claim's
particular legal basis and specific factual foundation.
Kelley v. Sec'y for Dep't of Corr., 377 F.3d
1317, 1344 (11th Cir. 2004) (citing Picard, 404 U.S.
petitioner who fails to raise a federal constitutional claim
in state court, or who attempts to raise it in a manner not
permitted by state procedural rules is barred from pursuing
the same claim in federal court absent a showing of cause for
and actual prejudice from the default. Alderman v.
Zant, 22 F.3d 1541, 1549 (11th Cir.), cert. denied
sub nom. Alderman v. Thomas, 513 U.S. 1061 (1994).
Alternatively, a petitioner may obtain federal habeas review
of a procedurally defaulted claim if review is necessary to
correct a fundamental miscarriage of justice. This only
occurs in an extraordinary case, where a constitutional
violation has probably resulted in the conviction of one who
is “actually innocent.” Murray v.
Carrier, 477 U.S. 478, 479-80 (1986). To meet the
“fundamental miscarriage of justice” exception, a
petitioner must show constitutional error coupled with
“new reliable evidence -- whether . . . exculpatory
scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence - that was not presented at
trial.” Schlup v. Delo, 513 U.S. 298, 324
STANDARD OF REVIEW
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs a state prisoner's federal petition for habeas
corpus. See 28 U.S.C. § 2254; Ledford v.
Warden, Ga. Diagnostic & Classification Prison, 818
F.3d 600, 642 (11th Cir. 2016). Section 2254(d), which
creates a highly deferential standard for federal court
review of a state court adjudication, states:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim --
(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;
(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.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the
Supreme Court interpreted this deferential standard:
Under the “contrary to” clause, a federal habeas
court may grant the writ if the state court arrives at a
conclusion opposite to that reached by this Court on a
question of law or if the state court decides a case
differently than this Court has on a set of materially
indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant
the writ if the state court identifies the correct governing
legal principle from this Court's decisions but
unreasonably applies that principle to the facts of the
phrase “clearly established Federal law”
encompasses only the holdings of the United States Supreme
Court “as of the time of the relevant state-court
decision.” Williams v. Taylor, 529 U.S. at
412. “The 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.”
Bell v. Cone, 535 U.S. 685, 694 (2002). Accord
Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001)
(“It is the objective reasonableness, not the
correctness per se, of the state court decision that
we are to decide.”). “AEDPA prevents defendants
-- and federal courts -- from using federal habeas corpus
review as a vehicle to second-guess the reasonable decisions
of state courts.” Renico v. Lett, 559 U.S.
766, 779 (2010). See also Cullen v. Pinholster, 563
U.S. 170, 181 (2011) (“This is a ‘difficult to
meet, ' . . . and ‘highly deferential standard for
evaluating state-court rulings, which demands that
state-court decisions be given the benefit of the doubt'
. . . .”) (citations omitted). “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.” Harrington v.
Richter, 562 U.S. 86, 786-87 (2011).
applying AEDPA deference, the federal habeas court must first
identify the last state court decision that evaluated the
claim on the merits. Wilson v. Warden, Ga. Diagnostic
Prison, 834 F.3d 1227, 1235 (11th Cir. 2016) (en
banc), cert. granted, Wilson v. Sellers, __
S.Ct. __, 2017 WL 737820 (No. 16-6855) (Feb. 27, 2017).
“When a federal claim has been presented to a state
court and the state court has denied relief, it may be
presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law
procedural principles to the contrary.”
Richter, 562 U.S. at 99. Where a state court's
decision is unaccompanied by an explanation, a
petitioner's burden under Section 2254(d) is to
“show[ ] there was no reasonable basis for the state
court to deny relief.” Richter, 562 U.S. at
98. A habeas court must determine what arguments or theories
supported or could have supported, the state court's
decision, and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior
decision of the Court. Richter, 562 U.S. at 102.
under Section 2254(d)(1) is limited to the record that was
before the state court that adjudicated the claim on the
merits. Pinholster, 563 U.S. at 181. The Court must
presume the state court's factual determinations are
correct, unless the petitioner rebuts that presumption with
“clear and convincing evidence.” 28 U.S.C. §
2254(e)(1); Jones v. Sec'y, Fla. Dep't of
Corr., 834 F.3d 1299, 1311 (11th Cir. 2016). “When
considering a determination of a mixed question of law and
fact, such as a claim of ineffective assistance of counsel,
the statutory presumption of correctness applies to only the
underlying factual determinations.” Daniel v.
Comm'r, Ala. Dep't of Corr., 822 F.3d 1248, 1259
(11th Cir. 2016) (quoting Tanzi v. Sec'y, Fla.
Dep't of Corr., 772 F.3d 644, 651 (11th Cir. 2014)).
2254(d)(2), like Section 2254(d)(1), requires that a federal
court afford substantial deference to a state court's
factual determinations. If “[r]easonable minds
reviewing the record might disagree about” the state
court factfinding in question, “on habeas review that
does not suffice to supersede” the state court's
factual determination. Daniel, 822 F.3d at 1259
(11th Cir. 2016) (quoting Rice v. Collins, 546 U.S.
333, 341-42 (2006).
INEFFECTIVE ASSISTANCE OF COUNSEL
contends that his trial and appellate counsel rendered
ineffective assistance. Strickland v. Washington,
466 U.S. 668 (1984), governs an ineffective assistance of
counsel claim. To establish ineffective assistance of
counsel, a petitioner must show that (1) counsel's
performance was deficient, falling below an objective
standard of reasonableness, and (2) the petitioner suffered
prejudice as a result of the deficient performance. 466 U.S.
at 687-88. A reviewing court's scrutiny of counsel's
performance is highly deferential, with a strong presumption
that counsel's performance falls within the wide range of
reasonable professional assistance. 466 U.S. at 689. Should a
court determine that the petitioner has failed to satisfy one
prong, it need not consider the other. 466 U.S. at 697.
Strickland standard governs claims of ineffective
assistance of appellate counsel. Smith v. Robbins,
528 U.S. 259, 285-86 (2000). Appellate counsel does not have
a duty to raise every non-frivolous issue. Jones v.
Barnes, 463 U.S. 745, 751-52 (1983). “[A]n
effective attorney will weed out weaker arguments, even
though they may have merit.” Philmore v.
McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009). To
establish prejudice, the petitioner must show that there is a
reasonable probability that he would have prevailed on appeal
but for counsel's deficient performance.
Robbins, 528 U.S. at 285-86.
viewing a Strickland claim through the lens of
Section 2254(d)'s unreasonableness standard, the pivotal
question is whether the state court's application of the
Strickland standard was unreasonable.
Richter, 562 U.S. at 101. Sustaining a claim of
ineffective assistance of counsel is very difficult because
the standards created by Strickland and §
2254(d) are both “highly deferential, ” and when
the two apply in tandem, review is “doubly so.”
Richter, 562 U.S. at 105 (quotations omitted).
See also Pinholster, 563 U.S. at 202 (a petitioner
must overcome the “‘doubly deferential'
standard of Strickland and AEDPA.”), and
Johnson v. Sec'y, Dep't of Corr., 643 F.3d
907, 911 (11th Cir. 2011) (“Double deference is doubly
difficult for a petitioner to overcome, and it will be a rare
case in which an ineffective assistance of counsel claim that
was denied on the merits in state court is found to merit
relief in a federal habeas proceeding.”). “When
§ 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.” Richter, 562 U.S. at 105.
alleges that the trial court erred in denying his motion to
suppress his statements to law enforcement. Caraballo
contends that his statements were made during a custodial
interrogation without proper Miranda warnings in
violation of the Fifth Amendment. He asserts that
investigator Cone flashed her badge and implicated him
“based on her statements from the outset that she did
not believe certain things he was telling her and that she
believed the child . . .” (Doc. 1 at 5) According to
Caraballo, the investigator did not advise him that he was
free to leave until she completed her questioning. Asserting
that he was arrested a few hours later, Caraballo claims that
he “did not feel he had any choice, based on Cone's
authority, [sic] that he could refuse to talk to her.”
(Doc. 1 at 5) Caraballo alleges that under the totality of
the circumstances, the manner of the investigator's
questioning amounted to a custodial interview with the
purpose of garnering inculpatory information. (Doc. 1 at 5)
raised the denial of his motion to suppress his statements on
direct appeal. The state appellate court's unelaborated
decision warrants deference under Section 2254(d)(1) as an
adjudication of Caraballo's ground on the merits.
warnings are required only where there has been such a
restriction on a person's freedom as to render him
“in custody.” Oregon v. Mathiason, 429
U.S. 492, 495 (1977) (per curiam). To determine
whether a person is in custody, a court examines all of the
circumstances surrounding the interrogation. Stansbury v.
California, 511 U.S. 318, 322 (1994) (per
curiam). Determining whether a suspect is “in
custody” requires two discrete inquires:
“[F]irst, what were the circumstances surrounding the
interrogation; and second, given those circumstances, would a
reasonable person have felt he or she was not at liberty to
terminate the interrogation and leave.” Thompson v.
Keohane, 516 U.S. 99, 112 (1995) (internal footnote
omitted). Relevant factors include the duration of
questioning, see Berkemer v. McCarty, 468 U.S. 420,
437-38 (1984), statements made during the interview, see
Mathiason, 429 U.S. at 495; Yarborough v.
Alvarado, 541 U.S. 652, 665 (2004); Stansbury,
511 U.S. at 325, the presence or absence of physical
restraints during questioning, see New York v.
Quarles, 467 U.S. 649, 655 (1984), and the release of
the person at the end of questioning, see California v.
Beheler, 463 U.S. 1121, 1122-23 (1983) (per
Cone, an investigator for the State Attorney's Office,
testified at the suppression hearing that she received a
complaint affidavit about Caraballo and interviewed A.O., the
child victim. (Ex. 1, V 1 R 70) Cone went to speak with
Caraballo at his residence on March 8, 2005. He was not
present, and Cone followed Caraballo's wife to the church
where Caraballo worked. His wife went inside to get
Caraballo, who met Cone in the lobby. Cone testified that she
identified herself as an investigator with the State
Attorney's Office, showed her badge, and asked if she
could talk to Caraballo. Cone was not wearing a uniform nor
bearing a firearm. Her handcuffs were not visible, as she
kept them in her purse. Agreeing to speak with her, Caraballo
led her to a small office. Cone told him that she wanted to
speak with him about A.O. and get information. After
obtaining background information from Caraballo, Cone asked
if she could turn on the tape recorder, and Caraballo agreed.
Cone turned on the tape recorder and put it on the desk where
she sat across from Caraballo. (Ex. 1, V 1 R 65-68)
described Caraballo as very congenial and talkative. Cone
testified that it appeared to her that he knew he was free to
leave. Caraballo left the room for a short period of time and
returned. (Ex. 1, V 1 R 68-69) She stated that she
did not read Miranda rights to Caraballo because he
was not in custody. (Ex. 1, V 1 R 74-75) Having no intention
of arresting Caraballo at the time, Cone left the church when
the interview concluded. (Ex. 1, V 1 R 69)
testified that Cone told him that she was present on account
of an accusation against him. Stating that he knew why she
was there, Caraballo testified that “people kept
telling me that you know [sic] somebody made something
against me.” (Ex. 1, V 1 R 77) He claimed that this did
not bother him because he did not believe it until Cone
showed up. Caraballo acknowledged that he invited Cone back
to the office and that he went outside and grabbed a chair
for her, explaining that the office was “really
small.” (Ex. 1, V 1 R 77) Caraballo testified that the
investigator did not advise him at the beginning of their
conversation that he was free to terminate the interview at
any time. He claimed that he felt he had no choice other than
to speak with her, testifying, “I had no choice. I felt
I had to talk to her. I was intimidated by her badge, you
know, just by her.” (Ex. 1, V 1 R 79) Asked if he felt
that he could leave and not return, Caraballo responded:
Uh, no I didn't feel like that but she did tell me --
well the phone rang. What happened was the incident where I
walked out for a second was the phone rang and I was busy
taking care of her [sic] I didn't want to you know answer
the phone and be rude you know and say hold on a second. I
got up gave the phone to -- one of the other workers. I guess
he take [sic] care of this. I got you know something else to
do and that's when I went right back inside. I just
walked right outside the door and handed the phone and came
(Ex. 1, V 1 R 79-80) Caraballo acknowledged that Cone had
asked if she could talk to him. He testified that he felt
intimidated by the badge, the investigation, and the
allegations, and he felt that he should say something. (Ex.
1, V 1 R 81) Caraballo was asked, “[b]ut she didn't
say anything to make you feel like you should say
something?” Caraballo responded, “Well, just
about the way she came out saying you know if you don't
-- her badge telling me I need to talk to you [sic] this is
what's going on you know, basically.” (Ex. 1, V 1 R
80-81) Caraballo acknowledged that he could have told the
investigator that he did not want to talk to her. Yet, he
maintained that he did not feel free to tell her that he did
not want to do so. (Ex. 1, V 1 R 81-82)
taking testimony and hearing argument, the state trial court
found that the circumstances in Caraballo's case were
relatively close to those in Snead v. State, 913
So.2d 724 (Fla. 5th DCA 2005). In Snead,
investigators had been invited by Snead's roommate to a
trailer where they had a casual conversation with Snead.
After the officers, who were not uniformed, had identified
themselves, Snead invited them to have a seat, and they
conversed at a kitchen table, recording his statement with
his permission. Snead, 913 So.2d at 724. The Court
in Snead agreed with the trial court that Snead was
not in custody during questioning. Id. After setting
forth the facts and holding in Snead, the state
trial court in Caraballo's case found:
. . . in the present case it seems very similar. It's --
he's brought to the church by the Defendant's wife.
The investigator is not in uniform, there's no handcuff,
no weapon . . . the -- he's invited into -- she's
invited into an area . . . and seated there to discuss
that…the conversations [sic] tape recorded. . . . I am
making a finding -- The Court is finding that the Defendant
was not in custody at the time. That this was not a custodial
interrogation. That there was no necessity for Miranda.
I'm further finding there was no formal arrest. There is
no restraint of movement and although a number of times
Defendant has testified here that I was intimated by her
badge [sic] [t]he Court's finding that no reasonable
person would have felt themselves to be under formal arrest
or so restrained of movement to be in custody at the time.
Motion to suppress is denied.
(Ex. 1, V 1 R 91-93)
record supports the conclusion that Caraballo was not in
custody for purposes of Miranda when he gave his
taped statements to the investigator. Caraballo met with the
investigator in a familiar setting of the church where he
worked,  and there were no other officers present.
Caraballo asserts that the investigator “flashed”
her badge, but he does not show that the investigator, who
was not in uniform and not carrying a firearm, did so for any
other reason than to identify herself as law enforcement.
Caraballo does not claim that the investigator issued any
commands or threatened him when presenting her badge.
was not restrained during the interview, another significant
factor as to how a reasonable person would view the
situation. It appeared to the investigator that Caraballo
knew that he was free to leave, and Caraballo does not deny
that he left the office to attend to a matter and returned of
his own volition. Caraballo asserts that the investigator did
not tell him that he was free to leave until she completed
her questioning. After Caraballo made a number of statements
but before questioning had ceased, the investigator asked
him, “. . . I didn't make you give me this
statement right?” Caraballo answered, “No no no
no.” The investigator stated, “You know you were
free to leave [?]” Caraballo responded,
“Exactly.” (Ex. 1, V 1 R 127; V 4 T 399)
Caraballo continued to speak with the investigator. Under the
totality of the circumstances, a reasonable person would have
felt free to leave. See United States v. Muegge, 225
F.3d 1267, 1271 (11th Cir. 2000) (“Under the totality
of the circumstances, an innocent individual in Muegge's
position who was told he was free to stop answering questions
and leave at any time would have actually felt free to do
alleges that the manner in which the investigator questioned
him was “interrogative” in nature. (Doc. 1 at 5)
He claims that the investigator said that she believed the
victim and did not believe certain things he was telling her.
Such, alone, would not support a finding that he was
subjected to custodial interrogation. Caraballo does not
allege that the interview was protracted in length, and there
is no indication in the transcript of the taped interview
that the officer engaged in behavior that would compel
additional factor is that Caraballo was not arrested at the
conclusion of the interview. Taking into consideration the
relevant factors, a reasonable person in Caraballo's
position would have felt able to terminate the interview at
any time and leave. Accordingly, it was reasonable for the
state court to conclude that Caraballo was not subjected to a
custodial interrogation when interviewed by the investigator,
and it was unnecessary to provide him with Miranda
Caraballo's statements were given during a custodial
interrogation, the admission of his statements was harmless.
Fifth Amendment violations arising from custodial
interrogation are subject to a harmless error analysis under
Brecht v. Abrahamson, 507 U.S. 619 (1993). See
e.g., Mansfield v. Sec'y, Dep't. of
Corr., 679 F.3d 1301 (11th Cir. 2012) (admission of
videotape of custodial interrogation by law enforcement
officers when Mansfield had not received Miranda
warnings was harmless under Brecht). There was ample
evidence of Caraballo's guilt of sexual battery and lewd
battery adduced at trial, including the eyewitness testimony
of the child victim, which was corroborated by A.E., a child
witness. In view of this testimony, the admission of
Caraballo's statements was harmless, if error, having no
substantial and injurious effect or influence in determining
the jury's verdict. Brecht, 507 U.S. at 637.
lived in a home near an apartment complex where A.O., his
mother, and A.O's brother, resided. A.O. would visit his
close friend, J.P., who was Caraballo's stepson, at
Caraballo's house, often spending the night. (Ex. 1, V 3
T 186, 191-93) Caraballo moved into an apartment in the
complex where the child victim lived. The State adduced
testimony as to five alleged incidents of Caraballo's
sexual abuse of A.O., the first of which established
Caraballo's guilt of sexual battery. A.O's testimony
about two other incidents established Caraballo's guilt
of lewd battery.
testified that the first incident occurred when he was eleven
years old and spending the night at Caraballo's house.
(Ex. 1, V 3 T 196-97, 208) A.O. said that he and J.P. were
sleeping on the living room floor. A.O.'s brother was on
a loveseat, and A.O.'s cousin, A.E. was on a big sofa.
(Ex. 1, V 3 T 198-200, 243, 246-47) A.O. testified that
Caraballo awoke him by touching the child's private spot.
A.O. tried to get up but Caraballo would not let him. (Ex. 1,
V 3 T 201-203, 207) Caraballo had covered A.O with a blanket
and threatened to tell the child's mother that he was
“gay.” (Ex. 1, V 3 T 207) A.O. testified that
Caraballo made A.O. take out the child's penis, which
Caraballo touched with his hand. (Ex. 1, V 3 T 204) A.O. said
that he tried to get someone's attention but did not want
to scream because he was scared. (Ex. 1, V 3 T 250).
Caraballo made A.O. put his mouth on Caraballo's penis,
and after doing so for five to ten seconds, A.O. pushed
Caraballo, who went back to his bedroom. (Ex. 1, V 3 T
205-06) A.O. went to his cousin's side. A.O. testified
that his cousin saw A.O. crying. A.O. believed from the look
in A.E.'s eyes that his cousin was trying to ask what was
“going on.” A.O. testified that he did not
answer, bursting in tears again. (Ex. 1, V 3 T 252-54)
the first incident, A.O. spent the night again in the same
home, trusting that Caraballo, whom A.O. called “Dad,
” would not do it again. (Ex. 1, V 3 T 263) The second
incident occurred around Christmas time, after A.O. turned
twelve years of age. (Ex. 1, V 3 T 209-10) A.O. testified
that after he fell asleep in the family room during a movie,
he was awakened by Caraballo's touching A.O.'s
private spot. (Ex 1, V. 3 T 211-12, 266) Caraballo made A.O.
put his mouth on Caraballo's penis, which stopped after
five to ten seconds because the dogs were making some noise.
(Ex. 1, V 3 T 214, 268) A.O. testified that the other
children, J.P., A.E., and A.O.'s brother, were sleeping.
(Ex. 1, V 3 T 267-69)
described another incident that occurred at Caraballo's
apartment during the summer between A.O.'s sixth and
seventh grade years. (Ex. 1, V 3 T 223) A.O. testified that
Caraballo made A.O. perform oral sex on Caraballo when they
were alone in a bedroom on a day that tile work was being
done. (Ex. 1, V 3 T 217, 220-21, 287-88) This lasted about
five to ten seconds until someone knocked at the door. (Ex.
1, V 3 T 221-22) He went to the bathroom to wipe his face so
no one would notice that he was crying, and after about five
minutes, he went home. (Ex. 1, V 3 T 288-89)
cousin, A.E., testified that during a sleepover at
Caraballo's house, A.O. was on the floor of the living
room, and A.E. saw Caraballo come in to the living room and
lay on the floor by A.O. A.E. testified that Caraballo took
out his “private” and put his hand on the back of
A.O.'s head, forcing A.O. “to suck”
Caraballo's “private.” (Ex. 1, V 3 T 321-23)
Caraballo had a blanket, but A.E. could see Caraballo's
face and half his body, as well as A.O.'s head. (Ex. 1, V
3 T 331-32) A.E. stayed quiet after this happened, and
according to A.E., the child victim was not crying. A.E. was
afraid to say anything. He testified that this incident
occurred in the summer time during his second sleepover at
Caraballo's house when A.E. was eight years old, and that
it was his last time staying overnight at Caraballo's
house, as A.E. thought that this would happen again. (Ex. 1,
V 3 T 329, 333-34)
testimony differed from that of A.O. on such matters as when
the incident occurred and whether A.O. cried. Nonetheless,
A.E.'s observations constituted significant corroboration
of A.O.'s testimony that Caraballo forced A.O. to perform
oral sex in the living room of Caraballo's house when the
children were staying overnight. In view of the eyewitness
testimony which established Caraballo's guilt of sexual
battery and lewd battery, admission of his statements, if
error, did not have a substantial and injurious effect or
influence in determining the jury's verdict The state
court's decision is not contrary to, or an unreasonable
application of, federal law as clearly established by the
Supreme Court, and the state decision is not based on an
unreasonable determination of the facts in light of the
evidence. Ground one does not warrant habeas relief.
alleges that his appellate counsel rendered ineffective
assistance by failing to argue on direct appeal that the
trial court erred in denying his motions for judgment of
acquittal. Caraballo first contends that his appellate
counsel was ineffective for not arguing that a judgment of
acquittal should have been granted because the State failed
to establish that the offenses for which he stands convicted
were committed within the time frames alleged. (Doc. 1 at 6)
Caraballo raised this aspect of this ground in his state
habeas petition alleging ineffective assistance of appellate
counsel. Citing In re Winship, 397 U.S. 358 (1970),
Caraballo asserted in his state petition that the elements of
sexual battery and lewd battery, and in particular, the time
frames during which such were alleged to have occurred, were
not proven beyond a reasonable doubt. Asserting that his