United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
matter comes before the Court upon a pro se petition
for habeas corpus relief filed pursuant to 28 U.S.C. §
2254 by Germain Jean (“Petitioner”) (Doc.
1, filed May 19, 2014). Petitioner, a prisoner of the
Florida Department of Corrections, attacks the convictions
entered by the Twentieth Judicial Circuit Court in and for
Collier County, Florida for two counts of capital sexual
battery against a child less than twelve years old (Doc.
1 at 1). Respondent filed a response to the petition
(Doc. 14). Petitioner filed a reply (Doc.
23), and the petition is now ripe for review.
raises six claims in his petition. Upon due consideration of
the pleadings and the state court record, the Court concludes
that each claim must be dismissed as unexhausted or denied.
Because the petition may be resolved on the basis of the
record, an evidentiary hearing is not warranted. See
Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (if
the record refutes the factual allegations in the petition or
otherwise precludes habeas relief, a district court is not
required to hold an evidentiary hearing).
Background and Procedural History
April 13, 2005, the state of Florida charged Petitioner with
three counts of sexual battery on a child less than twelve
years of age, in violation of Florida Statute §
794.011(2) (Ex. 1 at 15-16). Petitioner's first trial that
ended in a mistrial after a state witness commented on
Petitioner's right to remain silent (Ex. 1 at 45-49).
Thereafter, the state amended the information to reflect only
two counts of capital sexual battery and to change the dates
of the alleged offenses (Ex. 1 at 50a-50b).
second trial, the jury found Petitioner guilty as charged
(Ex. 1 at 67-68). Petitioner received two life sentences (Ex.
1 at 75-106). Florida's Second District Court of Appeal
affirmed the judgments and sentences without a written
opinion (Ex. 4); Jean v. State, 967 So.2d 207 (Fla.
2d DCA 2007).
February 14, 2006, Petitioner filed a motion for
post-conviction relief pursuant to Rule 3.850 of the Florida
Rules of Criminal Procedure (“Rule 3.850 motion”)
(Ex. 6 at 1 -20). Petitioner filed an amended Rule 3.850
motion on July 15, 2009 (Ex. 6a at 296-336). On September 27,
2010, an evidentiary hearing was held on ground five of the
Rule 3.850 motion (Ex. 6a). Thereafter, the post-conviction
court denied all claims raised in the Rule 3.850 motions (Ex.
6a at 351 -55). Florida's Second District Court of Appeal
affirmed without a written opinion (Ex. 10); Jean v.
State, 124 So.3d 237 (Fla. 2d DCA 2013).
signed the instant Petition on May 16, 2014 (Doc.
Governing Legal Principles
Standard of Review Under the Antiterrorism Effective Death
Penalty Act (“AEDPA”)
to the AEDPA, federal habeas relief may not be granted with
respect to a claim adjudicated on the merits in state court
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.
28 U.S.C. § 2254(d). This standard is both mandatory and
difficult to meet. White v. Woodall, 134 S.Ct. 1697,
1702 (2014). A state court's summary rejection of a
claim, even without explanation, qualifies as an adjudication
on the merits which warrants deference. Ferguson v.
Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). Notably,
a state court's violation of state law is not
sufficient to show that a petitioner is in custody in
violation of the “Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2254(a);
Wilson v. Corcoran, 562 U.S. 1, 16 (2010).
established federal law” consists of the governing
legal principles, rather than the dicta, set forth
in the decisions of the United States Supreme Court at the
time the state court issued its decision. White, 134
S.Ct. at 1702; Carey v. Musladin, 549 U.S. 70, 74
(2006) (citing Williams v. Taylor, 529 U.S. 362, 412
(2000)). That said, the Supreme Court has also explained that
“the lack of a Supreme Court decision on nearly
identical facts does not by itself mean that there is no
clearly established federal law, since ‘a general
standard' from [the Supreme Court's] cases can supply
such law.” Marshall v. Rodgers, 133 S.Ct.
1446, 1449 (2013) (quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)). State courts “must
reasonably apply the rules ‘squarely established'
by [the Supreme] Court's holdings to the facts of each
case.” White, 134 S.Ct. at 1706 (quoting
Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)).
there is clearly established federal law on point, habeas
relief is only appropriate if the state court decision was
“contrary to, or an unreasonable application of,
” that federal law. 29 U.S.C. § 2254(d)(1). A
decision is “contrary to” clearly established
federal law if the state court either: (1) applied a rule
that contradicts the governing law set forth by Supreme Court
case law; or (2) reached a different result from the Supreme
Court when faced with materially indistinguishable facts.
Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010);
Mitchell v. Esparza, 540 U.S. 12, 16 (2003).
court decision involves an “unreasonable
application” of the Supreme Court's precedents if
the state court correctly identifies the governing legal
principle, but applies it to the facts of the
petitioner's case in an objectively unreasonable manner,
Brown v. Payton, 544 U.S. 133, 134 (2005);
Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir.
2000), or “if the state court either unreasonably
extends a legal principle from [Supreme Court] precedent to a
new context where it should not apply or unreasonably refuses
to extend that principle to a new context where it should
apply.” Bottoson, 234 F.3d at 531 (quoting
Williams, 529 U.S. at 406). The petitioner must show
that the state court's ruling was “so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” White, 134 S.Ct. at
1702 (quoting Harrington v. Richter, 562 U.S. 86
(2011)). Moreover, “it is not an unreasonable
application of clearly established Federal law for a state
court to decline to apply a specific legal rule that has not
been squarely established by [the Supreme] Court.”
Knowles, 556 U.S. at 122.
when reviewing a claim under § 2254(d), a federal court
must bear in mind that any “determination of a factual
issue made by a State court shall be presumed to be correct[,
]” and the petitioner bears “the burden of
rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1);
Burt v. Titlow, 134 S.Ct. 10, 15 (2013) (“[A]
state-court factual determination is not unreasonable merely
because the federal habeas court would have reached a
different conclusion in the first instance.”) (quoting
Wood v. Allen, 558 U.S. 290, 293 (2010)).
Ineffective Assistance of Counsel
Strickland v. Washington, the Supreme Court
established a two-part test for determining whether a
convicted person is entitled to relief on the ground that his
counsel rendered ineffective assistance. 466 U.S. 668, 687-88
(1984). A petitioner must establish that counsel's
performance was deficient and fell below an objective
standard of reasonableness and that the deficient performance
prejudiced the defense. Id. This is a “doubly
deferential” standard of review that gives both the
state court and the petitioner's attorney the benefit of
the doubt. Burt, 134 S.Ct. at 13 (citing Cullen
v. Pinholster, 131 S.Ct. 1388, 1403 (2011)).
focus of inquiry under Strickland's performance
prong is “reasonableness under prevailing professional
norms.” Strickland, 466 U.S. at 688-89. In
reviewing counsel's performance, a court must adhere to a
strong presumption that “counsel's conduct falls
within the wide range of reasonable professional
assistance.” Id. at 689. Indeed, the
petitioner bears the heavy burden to “prove, by a
preponderance of the evidence, that counsel's performance
was unreasonable[.]” Jones v. Campbell, 436
F.3d 1285, 1293 (11th Cir. 2006). A court must “judge
the reasonableness of counsel's conduct on the facts of
the particular case, viewed as of the time of counsel's
conduct, ” applying a “highly deferential”
level of judicial scrutiny. Roe v. Flores-Ortega,
528 U.S. 470, 477 (2000) (quoting Strickland, 466
U.S. at 690).
the prejudice prong of the Strickland standard,
Petitioner's burden to demonstrate prejudice is high.
Wellington v. Moore, 314 F.3d 1256, 1260 (11th Cir.
2002). Prejudice “requires showing that counsel's
errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.”
Strickland, 466 U.S. at 687. That is, “[t]he
defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different.”
Id. at 694. A reasonable probability is “a
probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694.
Exhaustion and Procedural Default
AEDPA precludes federal courts, absent exceptional
circumstances, from granting habeas relief unless a
petitioner has exhausted all means of available relief under
state law. 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) (citing Picard v.
Connor, 404 U.S. 270, 275-76 (1971)). The petitioner
must apprise the state court of the federal constitutional
issue, not just the underlying facts of the claim or a
similar state law claim. Snowden v. Singletary, 135
F.3d 732 (11th Cir. 1998). In addition, a federal habeas
court is precluded from considering claims that are not
exhausted but would clearly be barred if returned to state
court. Coleman v. Thompson, 501 U.S. 722,
735 n.1 (1991) (if a petitioner has failed to exhaust state
remedies and the state court to which the petitioner would be
required to present his claims in order to meet the
exhaustion requirement would now find the claims procedurally
barred, there is a procedural default for federal habeas
purposes regardless of the decision of the last state court
to which the petitioner actually presented his claims).
Finally, a federal court must dismiss those claims or
portions of claims that have been denied on adequate and
independent procedural grounds under state law. Coleman,
501 U.S. at 750. If a petitioner attempts to raise a
claim in a manner not permitted by state procedural rules, he
is barred from pursuing the same claim in federal court.
Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir.
default will be excused only in two narrow circumstances.
First, a petitioner may obtain federal review of a
procedurally defaulted claim if he can show both
“cause” for the default and actual
“prejudice” resulting from the default. “To
establish cause for a procedural default, a petitioner must
demonstrate that some objective factor external to the
defense impeded the effort to raise the claim properly in
state court.” Wright v. Hopper, 169 F.3d 695,
703 (11th Cir. 1999) (internal quotation marks omitted). To
establish prejudice, a petitioner must show that there is at
least a reasonable probability that the result of the
proceeding would have been different. Henderson v.
Campbell, 353 F.3d 880, 892 (11th Cir. 2003).
second exception, known as the fundamental miscarriage of
justice, 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). Actual innocence means factual innocence,
not legal insufficiency. Bousley v. United States,
523 U.S. 614, 623 (1998). To meet this standard, a petitioner
must “show that it is more likely than not that no
reasonable juror would have convicted him” of the
underlying offense. Schlup v. Delo, 513 U.S. 298,
327 (1995). In addition, “[t]o be credible, a claim of
actual innocence must be based on [new] reliable evidence not
presented at trial.” Calderon v. Thompson, 523
U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at
raises six claims of ineffective assistance of counsel in his
petition. He asserts that defense counsel
(“Counsel”) was ineffective for failing to: (1)
adequately investigate or subpoena the custodian of Budget
Inn and the victim's father to testify at trial; (2)
object to the prosecutor's amended information; (3) call
defense witness Renol Jean to testify; (4) object to the
translator's inadequate translation; (5) challenge Juror
Perry Sheppard; and (6) file a motion for a judgment of
acquittal and a new trial (Doc. 1 at 5-12). Each
claim will be addressed separately.
urges that Counsel was ineffective for failing to investigate
and subpoena the custodian of Budget Inn and the victim's
(“E.L.'s”) father to testify at his trial
(Doc. 1 at 5). He asserts that E.L.'s father
would have testified that: Petitioner was not living with
E.L. at the time of the alleged offense; he had used his
credit card to pay for Petitioner's room at the Budget
Inn; and E.L.'s mother never told him about E.L.'s
molestation as she had testified at trial. Id. He
asserts that the custodian would have “provided further
support that Petitioner was not living at the residence at
the time the alleged offense occurred.” Id.
Petitioner raised this claim in his first Rule 3.850 motion
(Ex. 6 at 9). The claim was stricken by the post-conviction
court as facially insufficient, but Petitioner was provided
leave to amend the claim, which he did not timely do (Ex. 6a
ta 353). Accordingly, the claim was denied as abandoned.
Id. Florida's Second District Court of Appeal
affirmed (Ex. 10).
argues that Claim One is unexhausted and procedurally barred
because Petitioner did not timely amend his Rule 3.850 motion
(Doc. 14 at 13-14). Petitioner urges that any
failure to exhaust this claim is excused by the United States
Supreme Court's decision in Martinez v.
Ryan (Doc. 23 at 2-7). Upon review of
the record, the Court finds that Claim One is unexhausted
because it is not “substantial” and does not fall
within Martinez' equitable exception to the
procedural bar since Petitioner does not demonstrate
asserts that, had Counsel called E.L.'s father and the
unnamed custodian of Budget Inn to testify at trial, they
would have testified that Petitioner did not live with
E.L.'s family during the time the crimes were alleged to
have occurred and that E.L.'s mother fabricated the story
of sexual abuse because she did not like Petitioner (Doc.
1 at 5). However, he has not provided any evidence to
the Court in support of his assertions. He has not
produced a sworn statement of these witnesses' putative
testimony or even asserted that they would have been
available to testify. Consequently, the claim is too
speculative to warrant relief. SeeJohnson v.
Alabama,256 F.3d 1156, 1187 (11th Cir. 2001)
(“Johnson offers only speculation that the missing
witnesses would have been helpful. This kind of speculation
is ‘insufficient to carry the burden of a habeas corpus
petitioner.'”) (quoting Aldrich v.
Wainwright,777 F.2d 630, 636 (11th Cir. 1985)); see
alsoUnited States v. Ashimi,932 F.2d 643, 650
(7th Cir. 1991) (“[E]vidence about the ...