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Caraballo v. Secretary, Department of Corrections

United States District Court, M.D. Florida, Tampa Division

March 30, 2017



          Charlene Edwards Honeywell United States District Judge

         Ricardo 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 denied.


         Caraballo 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.

         Caraballo 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].

         Caraballo 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].

         Caraballo 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].



         Before 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. at 277).

         A 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 (1995).


         The 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; or
(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.

         In 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 prisoner's case.

         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).

         Before 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.

         Review 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)).

         Section 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).


         Caraballo 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.

         The 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.

         When 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.


         Ground One

         Caraballo 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[1] 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)

         Caraballo 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.

         Miranda 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 curiam).[2]

         Beverly 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)

         Cone 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.[3] (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)

         Caraballo 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 back in.

(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)

         After 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)

         The 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, [4] 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.

         Caraballo 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 so.”).

         Caraballo 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 compliance.

         An 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 warnings.

         Even if 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.

         Caraballo 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.

         A.O. 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)

         After 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)

         A.O. 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)

         A.O.'s 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)

         A.E.'s 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.

         Ground Two

         Caraballo 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 ...

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