Joel Hernandez v. Secretary, Department of Corrections, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13866
Non-Argument Calendar
____________________
JOEL HERNANDEZ,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:18-cv-01234-SDM-CPT
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2 Opinion of the Court 22-13866
____________________
Before B RASHER , ABUDU, and H ULL , Circuit Judges.
PER CURIAM:
Joel Hernandez, a Florida state prisoner, is serving two
consecutive life sentences for capital sexual battery under Fla. Stat.
§ 794.011(2)(a) (2008). Hernandez, pro se, appeals the district
court’s denial of his 28 U.S.C. § 2254 petition for writ of habeas
corpus.
On appeal, Hernandez argues that he was denied effective
assistance of trial counsel because his attorney failed to object to
the prosecutor’s alleged improper closing arguments to the jury. In
post-conviction proceedings, the state courts determined that
objection, even if made, lacked merit and Hernandez’s trial
counsel’s performance was not deficient in not objecting. After
review, we conclude that the state courts’ decision was not contrary
to, or involved an unreasonable application of, clearly established
federal law or based on an unreasonable determination of the facts
in light of the evidence presented to the state court. See 28 U.S.C.
§ 2254(d). Thus, we affirm the district court’s denial of
Hernandez’s § 2254 petition.
I. PROCEDURAL HISTORY
A. Information and Sentences
On October 24, 2013, the State of Florida filed a third
amended felony information charging Hernandez with two counts
of capital sexual battery under Fla. Stat. § 794.011(2)(a).
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Specifically, the information alleged that Hernandez, while over
the age of 18, committed sexual battery against a minor victim
under the age of 12. After a three-day jury trial in 2014, Hernandez
was convicted of the charged crimes and sentenced to two
consecutive terms of life imprisonment.
B. Trial Evidence
During the trial, the State presented seven witnesses: (1) the
child victim, Hernandez’s stepdaughter; (2) the child victim’s
father; (3) the child victim’s mother; (4) the road patrol corporal
with the Pasco County Sheriff’s Office who responded to the
father’s sex offense call; (5) the nurse practitioner who examined
the child victim; (6) the child victim’s cousin, as a similar fact
witness; and (7) the Pasco County Sheriff’s Office detective who
investigated the alleged sex offense.
The State introduced testimony that Hernandez was the
child victim’s live-in stepfather and that he placed his penis in the
child victim’s anus multiple times when she was under the age of
12. The child victim testified that Hernandez would offer her
money or would promise her sleepovers with her friends in
exchange for sexual favors. The child victim’s father testified that
the child victim told him that Hernandez was “raping her before
for a long time” and that she was afraid to tell anyone because
Hernandez had threatened her. The child victim’s mother testified
that the child victim told her that Hernandez entered her room,
that the child victim complained of bleeding from her anus, and
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4 Opinion of the Court 22-13866
that the child victim once handed her a bottle of eye drops filled
with personal lubricant.
The child victim’s cousin testified that, when she was a
minor, Hernandez attempted to convince her to engage in sexual
acts with him by offering her money. The cousin also testified that
Hernandez touched her bottom and asked her to go into another
room with him, pinned her to a bed and kissed her neck, and pulled
his penis out while they were watching a movie.
C. Closing Arguments and Direct Appeal
The prosecutor’s rebuttal closing arguments are the focus of
this appeal. Therein, the prosecutor likened the trial to a “crucible”
for the child victim, stating:
There is a word, crucible. Crucible is a severe
or certain test or trial[,] and I don’t mean trial in a
legal sense, but a trial is really a crucible. It is a
process[,] it is a difficult process. It is a long process
and it is intended to sort of grind slowly, and
eventually to come up with a result through the
difficulty of a child having come into court and testify
in front of the guy that was her father, right? Who
essentially was acting as her father, testify in front of
him about what he did to her when she was a little
girl.
And I mean, that is difficult. That is a crucible
that she has had to go through along with all the other
interviews and examinations and all the rest that has
occurred. So cross-examination is a crucible. It is
when the Defense gets up. They get to ask questions.
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They get to make accusations. So it is through this
crucible that we get the truth, right?
. . . .
[The child victim] testified in this case, and you
had the opportunity to see her as she went through
this crucible of testifying about unspeakable things in
front of strangers, all of us, in front of all of us about
things including by the way her step-father who did
this to her. So she had to get up on the witness stand
and tell you in a public forum about things--
The prosecutor also asked the jury to imagine the courage it
took for the child victim to disclose her sexual abuse, stating:
The Defendant’s crimes were hidden in plain
sight. [The child victim]’s mother didn’t see it
because she wasn’t looking.
And I want [to] just throw this out there, you
know, the defense says well, [the child victim] saw
what happened with [the child victim’s cousin] . . . .
But stop and think what the lesson of [the child
victim’s cousin] case was to a child like [the child
victim].
The lesson was, I submit that your mom might
not believe you. And the defendant, the guy who did
this may end up living in the house with you and you
may have to see him again. So imagine the courage
it must have taken for her to disclose this even to her
brothers.
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Hernandez’s trial counsel did not object to these rebuttal closing
arguments as golden rule arguments.
As noted above, the jury convicted Hernandez. Hernandez
appealed his capital sexual battery convictions to Florida’s Court of
Appeals. On February 17, 2016, the Florida appellate court
affirmed Hernandez’s convictions and sentences. Hernandez v.
State, 186 So. 3d 1031 (Fla. Ct. App. 2016).
D. Post-Conviction 3.850 Motion and Appeal
On July 5, 2016, Hernandez, pro se, filed a motion for post-
conviction relief under Florida Rule of Criminal Procedure 3.850 in
the Circuit Court of the Sixth Judicial Circuit of the State of Florida
in and for Pasco County (the “3.850 State Court”). On December
1, 2016, Hernandez, pro se, filed a timely second amended Rule
3.850 motion for post-conviction relief. Hernandez’s 3.850 motion
raised four claims of ineffective assistance of trial counsel.
First, Hernandez claimed that counsel’s “failure to object to
the prosecutor’s improper ‘golden rule’ argument was deficient
performance which amounted to ineffective assistance of counsel.”
(Font altered). Second, Hernandez claimed “out-of-court
statements elicited by the prosecutor violated defendant’s right to
confrontation, and counsel’s failure to object allowed the violation
of the defendant’s rights under the confrontation clause to go
unchallenged.” (Font altered). Third, Hernandez asserted that
counsel’s failure “to object on grounds of hearsay” constituted
deficient performance. Finally, Hernandez asserted that counsel
failed to adequately investigate his case before trial.
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On December 27, 2016, the 3.850 State Court denied
Hernandez’s motion for post-conviction relief. As relevant to this
appeal, the 3.850 State Court stated that under Florida law, the
State is prohibited from (1) making the golden rule argument “that
invite[s] the jurors to place themselves in the victim’s position
during the crime and imagine the victim’s suffering,” Mosley v. State,
46 So. 3d 510, 520 (Fla. 2009), and (2) also “from creating an
imaginary first-person script depicting the victim’s suffering or
death,” Braddy v. State, 111 So. 3d 810, 849 (Fla. 2012).
Ultimately, the 3.850 State Court determined that the
prosecutor’s closing arguments were not prohibited because
(1) “the prosecutor’s statements did not invite the jury to put
themselves in the victim’s position during the crime” and (2) “the
prosecutor’s comments did not create an imaginary script for the
victim at all, let alone one depicting her suffering.” Instead, the
prosecutor’s comments pertained to the difficultly the child victim
went through in testifying at trial and the courage it took to
disclose what had happened to her.
Therefore, the 3.850 State Court found that trial counsel’s
performance was not deficient because the prosecutor’s comments
were not golden rule arguments and an objection on that ground
could not have properly been sustained. See Schoenwetter v. State,
46 So. 3d 535, 546 (Fla. 2010) (holding that trial counsel’s
performance cannot be deemed deficient for failing to raise a
meritless objection). Finding that Hernandez could not meet the
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deficient performance prong of Strickland v. Washington, the 3.850
State Court declined to address prejudice.
Hernandez appealed. On December 15, 2017, the Florida
Court of Appeals summarily affirmed the denial of his Rule 3.850
motion. Hernandez v. State, 241 So. 3d 115 (Fla. Ct. App. 2017).
E. Federal § 2254 Proceedings
On June 27, 2018, Hernandez filed an amended 28 U.S.C.
§ 2254 petition for writ of habeas corpus in the United States
District Court for the Middle District of Florida. Ground one
alleged all grounds from Hernandez’s direct appeal and ground
two alleged all grounds from Hernandez’s 3.850 motion for post-
conviction relief. Hernandez alleged, inter alia, that his trial
counsel was constitutionally deficient for failing to object to the
prosecutor’s alleged golden rule arguments during rebuttal closing
arguments. In response, the State argued that Hernandez’s
petition should be denied for various reasons.
In his reply, Hernandez reiterated his arguments about the
golden rule and asserted that the district court should give no
deference to the Florida Court of Appeals’ denial of his ineffective
trial counsel claims because the denial was not adjudicated on the
merits by Florida’s highest state court.
On February 28, 2019, the district court denied Hernandez’s
§ 2254 petition. Relevant to this appeal, the district court
concluded that (1) Hernandez’s ineffective trial counsel claims
were adjudicated on the merits in state court and (2) the trial record
showed the prosecutor’s statements were not golden rule
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22-13866 Opinion of the Court 9
arguments, “as the post-conviction court determined by examining
the statements in context, and by applying Florida law.”
Therefore, Hernandez’s claims necessarily failed because trial
counsel did not perform deficiently.
Although the 3.850 State Court did not rule on prejudice, the
district court determined that Hernandez could not establish
prejudice. The district court found that the prosecutor’s
statements did not prejudice Hernandez because: (1) they “were
very limited in scope”; (2) they “were not improper golden rule
arguments under the law”; and (3) “the evidence of Hernandez’s
sexual abuse of the child victim was very strong.” The district
court observed that the offense: (1) was not an isolated incident; (2)
occurred repeatedly “over a two or so year period of time”; and (3)
was corroborated by evidence of Hernandez’s sexual abuse of the
child victim’s cousin. The district court found that “[t]here is no
reasonable probability that but for counsel’s unprofessional errors,
the result of the proceeding would have been different.”
In denying Hernandez’s § 2254 petition, the district court
concluded that Hernandez failed to meet his burden of proving
that the state courts unreasonably applied federal law in Strickland,
or unreasonably determined the facts in rejecting his claims.
This Court granted a certificate of appealability (“COA”) on
only this issue: “Did Hernandez’s trial counsel provide ineffective
assistance of counsel, under Strickland v. Washington, 466 U.S. 668
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(1984), by failing to object to the state’s allegedly improper ‘golden
rule’ argument during closing arguments?”1
II. STANDARD OF REVIEW
In reviewing the district court’s denial of a § 2254 petition,
we review de novo questions of law and mixed questions of law and
fact, and we review findings of fact for clear error. Raleigh v. Sec’y,
Fla. Dep’t of Corr., 827 F.3d 938, 948 (11th Cir. 2016). “We review
de novo the district court’s decision about whether the state court
acted contrary to clearly established federal law, unreasonably
applied federal law, or made an unreasonable determination of
fact.” Reed v. Sec’y, Fla. Dep’t of Corr., 593 F.3d 1217, 1239 (11th Cir.
2010) (quotation marks omitted).
III. DISCUSSION
A. 28 U.S.C. § 2254(d)
Under § 2254(d), federal courts may grant habeas relief on
claims previously adjudicated on the merits in state court only if
the state court’s decision was (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or
(2) “based on an unreasonable determination of the facts in light of
1 We do not address Hernandez’s argument regarding improper witness
bolstering because it falls outside the scope of the COA. See Murray v. United
States, 145 F.3d 1249, 1250-51 (11th Cir. 1998) (holding that “in an appeal
brought by an unsuccessful habeas petitioner, appellate review is limited to
the issues specified in the COA”).
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22-13866 Opinion of the Court 11
the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d)(1)-(2).2
Section 2254(d) “imposes a highly deferential standard for
evaluating state-court rulings and demands that state-court
decisions be given the benefit of the doubt.” Hardy v. Cross, 565
U.S. 65, 66 (2011) (quotation marks omitted). The standard is
“doubly deferential” when evaluating the performance prong of a
claim of ineffective assistance of counsel under § 2254(d)(1).
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); Jenkins v. Comm’r,
Ala. Dep’t of Corr., 963 F.3d 1248, 1265 (11th Cir. 2020). “The
question is not whether a federal court believes the state court’s
determination under the Strickland standard was incorrect but
whether that determination was unreasonable—a substantially
higher threshold.” Knowles, 556 U.S. at 123 (quotation marks
omitted).
For ineffective counsel claims, a § 2254 petitioner must
demonstrate that his Sixth Amendment right to counsel was
violated because (1) his counsel’s performance was deficient,
2 Under § 2254(d), we evaluate the highest state court decision that evaluated
the claim on the merits. Marshall v. Sec’y, Fla. Dep’t of Corr., 828 F.3d 1277, 1285
(11th Cir. 2016). Here, the highest state court decision, the Florida Court of
Appeals’ affirmance of the 3.850 State Court’s denial of Rule 3.850 motion,
does not give reasons for its summary affirmance. See Hernandez, 241 So. 3d
at 115. Therefore, we must “look through” the Florida appellate court’s
decision to the 3.850 State Court’s opinion and presume that the Florida Court
of Appeals’ decision adopted the same reasoning. See Wilson v. Sellers, 584 U.S.
----, 138 S. Ct. 1188, 1192 (2018) (quotation marks omitted).
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meaning that it fell below an objective standard of reasonableness,
and (2) the deficient performance prejudiced his defense, meaning
that there was a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687-88, 694, 697 (1984).
Because the petitioner must satisfy both prongs of Strickland, a
court need not address one prong, if the other is not satisfied. Id.
at 697.
B. Deficient Performance Prong
To show deficient performance, the petitioner must
demonstrate that trial counsel’s performance fell below an
objective standard of reasonableness. Strickland, 466 U.S. at 687-88.
“[C]ounsel should be strongly presumed to have rendered
adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” Cullen v. Pinholster,
563 U.S. 170, 189 (2011) (quotation marks omitted). Counsel's
performance is deficient only if it falls below the wide range of
competence expected of attorneys in criminal cases. See Strickland,
466 U.S. at 690. The burden is on the defendant to prove “that
counsel’s representation was unreasonable under prevailing
professional norms and that the challenged action was not sound
strategy.” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). “[A]ny
deficiencies of counsel in failing to raise or adequately pursue
[meritless issues] cannot constitute ineffective assistance of
counsel.” Owen v. Sec’y for Dep’t of Corr., 568 F.3d 894, 915 (11th
Cir. 2009).
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22-13866 Opinion of the Court 13
Here, there is an additional layer of deference. “[A]lthough
the issue of ineffective assistance—even when based on counsel’s
failure to raise a state law claim—is one of constitutional
dimension, we must defer to the state’s construction of its own law
when the validity of the claim that . . . counsel failed to raise turns
on state law.” Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1295 (11th Cir.
2017) (quotation marks omitted).
A review of the record supports the 3.850 State Court’s
conclusion that Hernandez failed to show that his trial counsel’s
performance was deficient under Strickland. See Strickland, 466 U.S.
at 687-88. Florida law prohibits arguments at trial that violate the
golden rule. Bailey v. State, 998 So. 2d 545, 555 (Fla. 2008). Under
Florida law, golden rule arguments are ones that “invite the jurors
to place themselves in the victim’s position during the crime and
imagine the victim’s suffering.” Mosley, 46 So. 3d at 520.
Applying Florida law, the 3.850 State Court concluded that
the State’s rebuttal closing arguments were not golden rule
arguments and were not improper nor legally objectionable. The
3.850 State Court determined that the prosecutor’s remarks
concerned the difficultly the child victim went through in testifying
at trial and the courage it took to disclose what had happened to
her. The prosecutor did not suggest that the jurors place
themselves in the child victim’s position and imagine what she
experienced during the crime. See id.
Accordingly, the 3.850 State Court found that
(1) Hernandez’s argument that the prosecutor improperly
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advanced golden rule arguments during closing arguments was
meritless, (2) counsel’s objection would not have been meritorious,
and (3) thus, trial counsel’s performance was not ineffective under
Strickland. See Strickland, 466 U.S. at 688, 690; Owen, 568 F.3d at
915; Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001) (stating
counsel is not ineffective for failing to raise a non-meritorious
objection). And the Florida appellate court summarily affirmed.
See Hernandez, 241 So. 3d at 115; see also supra note 2.
In this appeal, Hernandez has not carried his burden to show
that the Florida state courts’ decision was contrary to, or an
unreasonable application of, established federal law.
IV. CONCLUSION
For the reasons stated above, we affirm the denial of
Hernandez’s § 2254 petition.
AFFIRMED.
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