ORDER

JAMES D. WHITTEMORE, District Judge.

Petitioner, an inmate of the Florida penal system, initiated this action by filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1). Petitioner challenges his capital sexual battery conviction entered in 2006 by the Twelfth Judicial Circuit Court, Manatee County, Florida. Respondent filed a response to the petition, in which it incorporates a motion to dismiss the petition as untimely (Dkt. 14). Petitioner filed an amended reply to the response (Dkt. 21). Upon consideration, the petition is DENIED.

DISCUSSION

I. Timeliness

Respondent contends that the petition is time-barred. Petitioner disagrees, arguing that his petition was timely filed. Additionally, Petitioner argues for equitable tolling based on the state post-conviction court's delay in dismissing Petitioner's first post-conviction motion.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one year statute of limitations for seeking federal habeas corpus relief from a state-court judgment. 28 U.S.C. § 2244(d)(1). Lawrence v. Florida, 549 U.S. 327, 331 (2007). The limitation period runs from the latest of . . . "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. . . ." 28 U.S.C. § 2244(d)(1)(A). Additionally, "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). An application is "properly filed" when "its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000).

On October 5, 2007, the appellate court affirmed Petitioner's state court conviction (Resp. Ex. 4); Gaither v. State, 966 So.2d 394 (Fla. 2d DCA 2007) [table]. His conviction therefore became final 90 days later, on January 3, 2008, when the time for filing a petition for writ of certiorari in the Supreme Court of the United States expired. See Sup. Ct. R. 13(3) ("[t]he time to file a petition for . . . writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate. . . ."); Chavers v. Sec'y, Fla. Dep't of Corr., 468 F.3d 1273, 1274-75 (11th Cir. 2006) (stating the 90-day period begins to run from the date of entry of judgment and not the issuance of the mandate). Petitioner therefore had one year from January 3, 2008, in which to file a timely federal habeas petition under 28 U.S.C. § 2254. His federal habeas petition was filed on April 18, 2012,1 more than four years after his conviction became final. Accordingly, unless the limitation period was tolled by a properly filed state court post-conviction application, Petitioner's federal petition is untimely.

On February 19, 2008, 47 days after his conviction became final, Petitioner filed a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 (Resp. Ex. 6a), and a memorandum of law in support of the motion (Resp. Ex. 6b).2 The Rule 3.850 motion included a sworn oath required by Florida law (Resp. Ex. 6a at p. 9).3 Nevertheless, the facts relied on to support the motion were set forth in the memorandum of law rather than the motion itself (Resp. Exs. 6a, 6b). And the assertions of fact in the attached memorandum of law were not made under oath (Resp. Ex. 6b). Therefore, on February 20, 2009, the state post-conviction court dismissed the motion without prejudice "to a [sic] file facially sufficient motion" within "120 days from the date of this order [.]" (Resp. Ex. 9).4

Respondent contends that the Rule 3.850 motion was not "properly filed," and therefore did not toll the AEDPA statute of limitations, because the motion did not comply with Florida's written oath requirement (see Dkt. 14 at pp. 4-6). The Court agrees.

"Under Florida law, a Rule 3.850 motion for post-conviction relief must . . . contain either a notarized or an unnotarized oath." Jones v. Sec'y, Florida Dep't of Corr., 499 Fed. Appx. 945, 950 (11th Cir. 2012) (unpublished) (citing Fla. R. Crim. P. 3.987(1)). See also Fla. R. Crim. P. 3.850(c). "The purpose of the oath is to prevent false factual allegations by subjecting the movant to prosecution for perjury if the factual allegations in the motion prove to be false." Stevens v. State, 947 So.2d 1227, 1228 (Fla. 2d DCA 2007) (citing Scott v. State, 464 So.2d 1171 (Fla. 1985)). Under Florida law, a Rule 3.850 motion is not in compliance with the requirement that the motion be under oath where the motion itself includes a sworn oath, but the facts are set forth in a memorandum that does not have a sworn oath. See Clemmons v. State, 959 So.2d 825, 826 (Fla. 4th DCA 2007) ("appellant's [Rule 3.850] motion did not comply with the rule requirement that the motion be under oath . . . [where] the motion itself was sworn, [but] the facts were included in a memorandum which was not sworn.") (citation omitted); Gonzalez v. State, 869 So.2d 775 (Fla. 5th DCA 2004) (sworn Rule 3.850 motion did not contain facts; unsworn memorandum of law attached to motion which stated facts insufficient to cure motion). "[A] Rule 3.850 motion that [does] not contain the written oath required by Florida law [is] not `properly filed' under § 2244(d)(2) and, thus, [does] not toll AEDPA's one-year limitations period." Jones, 499 Fed. Appx. at 950 (citing Hurley v. Moore, 233 F.3d 1295, 1297-98 (11th Cir. 2000)).

Although Petitioner's February 19, 2008 Rule 3.850 motion included a sworn oath, the facts in support of his claims were set forth in the memorandum, which did not include a sworn oath. The motion therefore did not comply with Rule 3.850's oath requirement. Consequently, the motion was not "properly filed" and therefore did not toll the AEDPA's limitation period.

On October 23, 2009 (245 days after the original Rule 3.850 motion was dismissed), Petitioner filed his "Amendment/Supplement to Pending Motion for Post-Conviction Relief and Motion(s) for Leave to Amend Motion for Postconviction Relief" ("second Rule 3.850 motion") (Resp. Ex. 12). However, because the federal limitation period already expired on January 8, 2009 (one year after Petitioner's conviction became final on January 8, 2008), neither his second Rule 3.850 motion, nor any of his subsequently filed motions, tolled the federal limitation period. See Moore v. Crosby, 321 F.3d 1377, 1381 (11th Cir. 2003) (Rule 3.850 motion, "filed after expiration of the limitations period[,] does not relate back so as to toll idle periods preceding the filing of the federal [habeas] petition"); Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001) (where a Rule 3.850 motion is filed after the expiration of the federal limitation period, it does not toll the period under § 2244(d)(2) because no period remains to be tolled). Therefore, absent equitable tolling or a showing of actual innocence,5 Petitioner's federal habeas petition is time-barred.

Petitioner does not demonstrate that he is actually innocent of the crime for which he was convicted. He does, however, argue that he is entitled to equitable tolling (Dkt. 21 at pp. 4-6).

The limitation period under § 2244(d) is subject to equitable tolling. Sibley v. Culliver, 377 F.3d 1196, 1204 (11th Cir. 2004). Section 2244 "permits equitable tolling `when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable with diligence.'" Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000) (quoting Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999) (per curiam)); Arthur v. Allen, 452 F.3d 1234, 1252 (11th Cir. 2006) (petitioner must show both extraordinary circumstances and diligence). Equitable tolling applies, however, only in truly extraordinary circumstances, Jones v. United States, 304 F.3d 1035, 1039-1040 (11th Cir. 2002), and where the litigant satisfies his burden of showing that he has been pursuing his rights diligently and that some extraordinary circumstance "stood in his way and prevented timely filing." Holland v. Florida, 130 S.Ct. 2549, 2562 (2010).

Petitioner has not satisfied his burden of showing circumstances justifying equitable tolling. First, Petitioner makes no showing of extraordinary circumstances which prevented him from filing a timely federal habeas petition. Petitioner contends that the state post-conviction court's delay of one year before dismissing Petitioner's original Rule 3.850 motion warrants equitable tolling of the limitations period (Dkt. 21 at pp. 4-5). The delay in dismissing the motion does not itself amount to an extraordinary circumstance, especially where there is no evidence that the delay was a consequence of malfeasance on the part of the State. See Hill v. Jones, 242 Fed. Appx. 633, 637 (11th Cir. 2007) (unpublished). Moreover, the delay did not prevent Petitioner from asserting his rights because he could have filed a protective federal habeas petition and requested a stay until his state remedies were exhausted. See Colbert v. Head, 146 Fed. Appx. 340, 344 n.5 (11th Cir. 2005) (unpublished) ("a `petitioner trying in good faith to exhaust state remedies [who] may litigate in state court for years only to find out at the end that he was never `properly filed' and thus that his federal habeas petition is time barred,' may avoid this predicament by filing a `protective' petition in federal court . . . asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted.") (quoting Pace v. Diguglielmo, 125 S.Ct. 1807, 1813 (2005)). Therefore, because Petitioner has failed to show that the State prevented Petitioner from filing a timely federal habeas petition, he has not demonstrated a truly extraordinary circumstance warranting equitable tolling.

Second, even if it were to be assumed that Petitioner met the extraordinary circumstance prong, he has failed to demonstrate that he acted with due diligence. "The diligence required for equitable tolling purposes is reasonable diligence." Holland, 130 S. Ct. at 2565. The question therefore is whether Petitioner has established that he pursued his right to file a federal habeas petition under 28 U.S.C. § 2254 with reasonable diligence. See Melson v. Comm'r, 713 F.3d 1086, 1090 (11th Cir. 2013) (when a habeas petitioner fails to demonstrate that he exercised reasonable diligence in pursuing his federal remedies, he is not entitled to equitable tolling of the AEDPA's statute of limitations).

Petitioner has failed to demonstrate that he pursued his right to file a federal habeas petition with reasonable diligence. He has not alleged that he ever filed a motion or other inquiry with the state post-conviction court to obtain a disposition of his original Rule 3.850 motion while it was pending for more than one year without any judicial action. See San Martin v. McNeil, 633 F.3d 1257, 1269 (11th Cir.), cert. denied, 132 S.Ct. 158 (2011)) ("efforts to learn the disposition of pre-federal habeas steps are crucial to determining whether equitable tolling is appropriate."); Bernadeu v. Sec'y, Dep't of Corr., 432 Fed. Appx. 823, 824 (11th Cir. 2011) (unpublished) ("Bernadeu took no action to learn the status of his state court case for more than seven months, during which time the statute of limitations expired. The district court thus did not err in finding that Bernadeu did not act diligently during this delay."). Additionally, even after the state post-conviction court dismissed his Rule 3.850 motion on February 20, 2009, Petitioner waited more than eight months before filing his second Rule 3.850 motion, and more than three years before filing his federal habeas petition. These lengthy delays do not convey diligence. Consequently, Petitioner is not entitled to equitable tolling.

Accordingly, because Petitioner's petition is untimely, and he is note entitled to equitable tolling of the limitations period, his federal habeas petition is time-barred.

II. Merits

Even if the petition is not time-barred, it does not warrant federal habeas relief.

STANDARD OF REVIEW

The AEDPA governs this Section 2254 habeas proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a highly deferential standard for federal court review of state court adjudications, states in pertinent part:

In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this deferential standard:

"The focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable, . . . an unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. 685, 694 (2002). See 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."). 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, 529 U.S. at 412.

The purpose of federal review is not to re-try the state case. "The [AEDPA] modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell, 535 U.S. at 693. Federal courts must afford due deference to a state courts decision. "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).

In per curiam decisions without written opinions the state district court of appeal affirmed Petitioner's judgment of conviction (Resp. Ex. 4) and the denial of Petitioner's Rule 3.850 motion (Resp. Ex. 18). The affirmance in each case warrants deference under Section 2254(d)(1) because "the summary nature of a state court's decision does not lessen the deference that it is due." Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir.), reh'g and reh'g en banc denied, 278 F.3d 1245 (2002), cert. denied sub nom Wright v. Crosby, 538 U.S. 906 (2003).

Petitioner bears the burden of overcoming a state court factual determinations by clear and convincing evidence. "[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact, but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir.), cert. denied, 534 U.S. 1046 (2001). The state courts' rejection of Petitioner's post-conviction claims warrants deference in this action.

Standard of Review for Ineffective Assistance of Counsel

Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of counsel claim:

Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998).

Strickland requires proof of both deficient performance and consequent prejudice. Strickland v. Washington, 466 U.S. at 697 ("There is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one."); Sims v. Singletary, 155 F.3d at 1305 ("When applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds."). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. Strickland requires that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. And, because "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment," Petitioner must demonstrate that counsel's error prejudiced the defense. Strickland v. Washington, 466 U.S. at 691-92.

ANALYSIS

Ground One

Petitioner contends that the state trial court erred in denying his motion to suppress a recorded statement he gave to police in violation of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). Petitioner alleges that the Miranda warning he received was insufficient because it did not specifically advise him of his right to have "appointed counsel without cost to him." (Dkt. 1 at p. 5) (emphasis in original).

Following Petitioner's arrest on October 27, 2005, Petitioner gave a recorded statement at the Sheriff's office (Resp. Ex. 1, Vol. I at record pp. 66-96). During the recorded statement, Petitioner made incriminating remarks, including that his penis penetrated the 10-year old victim's vagina (Id. at record p. 88). Prior to trial, Petitioner's counsel filed an amended motion to suppress the statements, arguing, in pertinent part, that Petitioner was not fully apprised of his rights (Id. at record pp. 13-15). A hearing on the motion was held on October 6, 2006 (Id. at record pp. 65-111). During the hearing, Petitioner's recorded statement was played (Id. at record pp. 80-96). At the beginning of the tape recording, Detective Patterson read Petitioner his rights, stating as follows:

(Id. at record p. 80). At the conclusion of the evidentiary hearing, the state trial court found that Petitioner's statement "was freely and voluntarily made, the Miranda warnings were properly administered to [Petitioner], and [Petitioner] knowingly and voluntarily waived them." (Id. at record p. 110). During trial, Petitioner's recorded statement was published to the jury (Resp. Ex. 1, Vol. V at transcript pp. 430-46).

On direct appeal, Petitioner argued that the Miranda warnings he received were inadequate because he was not advised that an attorney would be provided to him without cost (Resp. Ex. 2). The state appellate court per curiam affirmed the judgment of conviction without a written opinion (Resp. Ex. 4).

The state appellate court's denial of this claim was not objectively unreasonable. Detective Patterson informed Petitioner, in pertinent part, that "You have the right to talk to a lawyer and have him or her present with you while you're being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish." These warnings adequately conveyed to Petitioner his right to have a lawyer appointed if he could not afford one prior to and during interrogation. See United States v. Buonsignore, 131 Fed. Appx. 252, 257-58 (11th Cir. 2005) (unpublished) (rejecting defendant's argument that "Miranda warnings given to him were constitutionally insufficient because they did not explicitly advise him of his right to have a lawyer appointed at no cost" where warnings given to defendant "included the right to have a lawyer appointed for [defendant].").

The state appellate court's denial of this claim was not contrary to or an unreasonable application of, clearly established federal law as determined by the Supreme Court, nor was it based on an unreasonable determination of the facts. Accordingly, Ground One does not warrant federal habeas relief.

Ground Two

In Ground Two, Petitioner asserts eleven sub-claims: 1) nine ineffective assistance of counsel claims (Issues 1-3 and 5-10); 2) one claim that he was denied a fair trial because he was denied his right to be present during bench conferences, depositions of witnesses, and during the swearing of the jury venire (Issue 4); and 3) one claim that he was denied his right to be tried by a jury of his peers (Issue 11).6

A. Issue 1

Petitioner contends that counsel was ineffective in failing to adequately investigate "the facts of the case." Specifically, Petitioner asserts 1) that had counsel taken the deposition of the doctor who examined the victim, counsel would have discovered that the examination revealed "no medical evidence of physical abuse," and 2) counsel "ignored available information related the [sic] to the DNA evidence found on the child's bedding which in fact belonged to the Petitioner's youngest brother." (Dkt. 1 at p. 7). Petitioner further asserts that counsel was ineffective in failing "to impeach both the victim and the victim's mother with the examining doctor's testimony concerning his examination of the child victim since such testimony would have affirmed the lack of physical evidence. . . ." (Id.).

Petitioner raised this claim in Issue 1 of his Rule 3.850 motion (Resp. Ex. 6b at pp. 3-8). In denying the claim, the state post-conviction court stated:

(Resp. Ex. 14 at pp. 3-5) (alterations and emphasis in original) (footnotes omitted).

The state post-conviction court's decision that Petitioner failed to establish prejudice was not objectively unreasonable. Petitioner only speculates on the doctor's (who examined the victim) proposed testimony and presents no evidence that the doctor would have testified that the victim did not sustain physical trauma. Additionally, the State's DNA expert testified that she discovered DNA from the victim and the victim's stepfather and mother on the bedding that was provided to her, but did not find Petitioner's DNA on the bedding (Resp. Ex. 1, Vol. V at transcript pp. 378-86). Moreover, defense counsel did not "ignore[] available information related to the DNA evidence found on the child's bedding. . . ." (see Dkt. 1 at p. 7). Rather, during closing argument, defense counsel highlighted the lack of physical evidence, including the lack of Petitioner's DNA on the bedding and lack of evidence of trauma to the victim, and argued that such lack of evidence linking Petitioner to the crime created reasonable doubt (Id. at transcript pp. 537-43).

In light of the fact that defense counsel made the jury aware that the State presented no physical evidence linking Petitioner to the crime, and in light of the strong evidence presented by the State, including Petitioner's recorded statement in which he admitted penetrating the victim's vagina with his penis, Petitioner offers no reason to believe that there is a reasonable probability that the outcome of the trial would have been different had counsel 1) called the medical doctor to testify, and 2) cross-examined the victim and her mother regarding the lack of physical evidence of trauma to the victim. See, e.g., United States v. Tavares, 100 F.3d 995, 998, 321 U.S. App. D.C. 381, (D.C.Cir. 1996) (where the record establishes no reasonable probability that the defendant's asserted testimony would have changed the outcome of the trial, the defendant has failed to make a showing of prejudice). Consequently, Petitioner has failed to demonstrate prejudice.

The state post-conviction court's denial of this claim was neither contrary to nor an unreasonable application of Strickland. Accordingly, Ground Two, Issue 1 does not warrant federal habeas relief.

B. Issue 2

Petitioner contends that counsel was ineffective in failing to object to the victim's mother (a layperson) offering an expert opinion. Petitioner argues that the mother offered an "expert opinion" when she testified that Petitioner "had taken away something from her child that the child could never get back."

Petitioner raised this claim in Issue 2 of his Rule 3.850 motion (Resp. Ex. 6b at pp. 9-10). In denying the claim, the state post-conviction court stated:

(Resp. Ex. 14 at p. 5).

The state post-conviction court's determination that Petitioner failed to demonstrate deficient performance was not objectively unreasonable, and was not based on an unreasonable determination of the facts. The state post-conviction court correctly found that the victim's mother, Christina Jones, neither testified that Petitioner "had taken away something from her child that the child could never get back," nor offered an impermissible opinion (see Resp. Ex. 1, Vol. IV at transcript pp. 345-59).7 Therefore, because Christina Jones never offered testimony that amounted to an opinion, defense counsel was not deficient in failing to object to Christina Jones' testimony on the ground that she offered impermissible opinion testimony.

The state post-conviction court's denial of this claim was neither contrary to nor an unreasonable application of Strickland, and was not based on an unreasonable determination of the facts. Accordingly, Ground Two, Issue 2 does not warrant federal habeas relief.

C. Issue 3

Petitioner contends that trial counsel rendered deficient performance when he "(1) failed to secure evidence showing that there was not medical evidence to substantiate the allegations of sexual battery/abuse, and (2) failed to conduct any investigation into the lack of medical evidence of sexual abuse." (Dkt. 1 at pp. 7-8). Initially, this claim is conclusory, unsupported by facts, and is therefore subject to dismissal without an evidentiary hearing. See Machibroda v. United States, 368 U.S. 487 (1962) (conclusory allegations, unsupported by specifics, are subject to summary dismissal); Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (a movant is not entitled to habeas corpus relief when the claims are merely conclusory allegations unsupported by specifics); San Martin v. McNeil, 633 F.3d 1257, 1271 (11th Cir. 2011) ("`An evidentiary hearing may be necessary where the material facts are in dispute, but a petitioner is not entitled to an evidentiary hearing when his claims are merely conclusory allegations unsupported by specifics.'") (quoting Pugh v. Smith, 465 F.3d 1295, 1300 (11th Cir. 2006)).

Moreover, to the extent that, liberally construed, Issue 3 raises the same allegations presented in Issue 3 of Petitioner's state Rule 3.850 motion (see Resp. Ex. 6b at pp. 10-16), the claim does not warrant relief. In Issue 3 of the Rule 3.850 motion, Petitioner alleged that counsel was ineffective in 1) failing to investigate and obtain medical records from the doctor who examined the victim after the alleged sexual battery to establish that there was no "medical evidence" of a sexual battery, and 2) failing to consult with and retain an expert to review the evidence and render an opinion regarding the significance of the lack of medical evidence in the case (Id.). In denying the claim, the state post-conviction court stated:

(Resp. Ex. 14 at p. 6).

The state post-conviction court's determination that Petitioner failed to demonstrate prejudice was not objectively unreasonable, and was not based on an unreasonable determination of the facts. Petitioner has failed to present any evidence that the doctor's medical examination of the victim found no medical evidence of sexual abuse. And even if the examination did not reveal any evidence of abuse, Petitioner offers no reason to believe that there is a reasonable probability that the outcome of the trial would have been different had counsel presented this evidence. Petitioner's case did not come down to a swearing match between him and the victim. Rather, the jury heard Petitioner's recorded statement in which he admitted that he put his penis inside the 10-year old victim's vagina. Consequently, Petitioner has failed to show that he was prejudiced by counsel's failure to allegedly investigate the lack of medical evidence of sexual abuse.

The state post-conviction court's denial of this claim was neither contrary to nor an unreasonable application of Strickland, and was not based on an unreasonable determination of the facts. Accordingly, Ground Two, Issue 3 does not warrant federal habeas relief.

D. Issue 4

In Ground Two, Issue 4, Petitioner appears to assert the following claims:

Petitioner raised these claims, or similar claims, in Issue 4 of his Rule 3.850 motion (Resp. Ex. 6b at pp. 17-24). In denying the claims, the state post-conviction court stated:

1. Absence at Bench Conferences

The Defendant complains that during his trial "no less than eleven bench conferences occurred without him." The Defendant further alleges that his presence at such conferences could have assisted his defense. The Florida Supreme Court has previously explained why a claim such as the Defendant's must fail "when the defendant has failed to show that anything was discussed at the conference that required the defendant's consultation." As the Supreme Court detailed:

2. Absence at Depositions of Witnesses

3. Absence at Swearing of Jury Pool

(Resp. Ex. 14 at pp. 6-9) (footnotes omitted).

A defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure. Kentucky v. Stincer, 482 U.S. 730, 745 (1987); Hodges v. Attorney General, State of Fla., 506 F.3d 1337 (11th Cir. 2007); Diaz v. Sec'y for Dept. Of Corr., 402 F.3d 1136, 1141 (11th Cir. 2005). However, under both federal and Florida law, a defendant has no constitutional right to be present at bench conferences that involve purely legal matters. See In re Shriner, 735 F.2d 1236, 1241 (11th Cir. 1984) (citation omitted); Hardwick v. Dugger, 648 So.2d 100 (Fla. 1994). Petitioner has failed to allege, or present any facts or evidence showing, that the eleven bench conferences at which he was not present involved anything other than purely legal matters. Therefore, Petitioner has failed to demonstrate that he had a constitutional right to be present at the bench conferences. Accordingly, the state post-conviction court's denial of this claim was not contrary to clearly established federal law.

The state post-conviction court's determination that Petitioner "had no constitutional right to be present at the depositions" likewise was not contrary to clearly established federal law. Petitioner has not cited any binding authority, and this Court is aware of none, from the United States Supreme Court holding that depositions are a critical stage of the criminal proceedings triggering a criminal defendant's fundamental right to be present. Further, Petitioner has failed to allege facts tending to show a reasonable probability that his attendance at the depositions would have changed the outcome of the proceedings. And to the extent Petitioner asserts his right to confront witnesses was violated, the Confrontation Clause "guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact." Coy v. Iowa, 487 U.S. 1012, 1016 (1988). However, the Court is not aware of any Supreme Court authority extending this right to pre-trial depositions.

Finally, under Florida law Petitioner has no right to be present during the swearing of the jury pool. See Anderson v. State, 18 So.3d 501, 522 (Fla. 2009) (citing Robinson v. State, 520 So.2d 1, 4 (Fla. 1988)). Further, Petitioner has not cited any binding authority, and this Court is aware of none, from the United States Supreme Court holding that the swearing of the jury venire is a critical stage of the criminal proceedings triggering a criminal defendant's fundamental right to be present. And to the extent Petitioner asserts he was denied a fair trial because the jury venire was not sworn, he does not overcome the state court's factual finding that the jury venire was sworn by clear and convincing evidence. 28 U.S.C. § 254(e)(1); Sneed v. Fla. Dep't of Corr., 496 Fed. Appx. 20, 23 (11th Cir. 2012) ("To overcome the deference owed to state court factual determinations, a petitioner must present clear and convincing evidence that the state court's factual findings were unreasonable.") (citations omitted).

Petitioner has failed to show that the state post-conviction court's denial of this claim was contrary to or an unreasonable application of federal precedent or based on an unreasonable determination of the facts. Accordingly, Ground Two, Issue 4 does not warrant federal habeas relief.

E. Issue 5

Petitioner contends that trial counsel was ineffective in failing to state specific grounds in his motions for judgment of acquittal made at the close of the State's case and after the defense rested. In state court, Petitioner raised this claim in Issue 5 of his Rule 3.850 motion (Resp. Ex. 6b at pp. 25-26). In denying the claim, the state post-conviction court stated:

(Resp. Ex. 14 at pp. 9-10) (footnotes omitted).

The state post-conviction court's determination that Petitioner failed to demonstrate prejudice was not objectively unreasonable, and was not based on an unreasonable determination of the facts. Initially, the record belies Petitioner's contention that counsel failed to assert specific grounds in support of the motion for judgment of acquittal. In support of the motion, counsel argued that there was insufficient evidence for the matter to go to the jury because the victim never specifically identified Petitioner as the perpetrator of the crime (Resp. Ex. 1, Vol. V at transcript pp. 473-74). Petitioner has not alleged that counsel should have argued additional grounds in support of the motion for judgment of acquittal. Moreover, the state post-conviction court has answered the question of what would have happened had defense counsel "more artfully presented [the] motion for judgment of acquittal" — the motion would have been denied because "there was enough evidence introduced at trial to support the Defendant's conviction."8 Consequently, Petitioner has failed to establish deficient performance or prejudice. See e.g., Callahan v. Campbell, 427 F.3d 897, 932 (11th Cir. 2005) (Alabama Court of Criminal Appeals had already answered the question of what would have happened had counsel objected to the introduction of petitioner's statements based on state decisions; the objection would have been overruled; therefore, counsel was not ineffective for failing to make that objection).

The state post-conviction court's denial of this claim was neither contrary to Strickland nor based on an unreasonable determination of the facts. Accordingly, Ground Two, Issue 5 does not warrant federal habeas relief.

F. Issue 6

In the recorded statement Petitioner gave to law enforcement following his arrest, Petitioner admitted that while he was lying in bed with the victim, he penetrated her vagina from behind (Resp. Ex. 1, Vol. V at transcript pp. 437-38). Petitioner alleges that "he was forced to make his confession because the police mistreated and beat him." (Dkt. 1 at p. 9). He contends that trial counsel rendered ineffective assistance in failing to 1) "independently investigate the Petitioner's reasons for making a confession to a crime which he did not commit," and 2) "move[] to . . . suppress his confession on the basis that it was not freely and voluntarily given because of such mistreatment." (Id.).

In state court, Petitioner raised this claim in Issue 6 of his Rule 3.850 motion (Resp. Ex. 6b at pp. 27-30). In denying the claim, the state post-conviction court stated:

(Resp. Ex. 14 at pp. 10-12).

The state post-conviction court's determination that Petitioner failed to demonstrate deficient performance and prejudice was not objectively unreasonable, and was not based on an unreasonable determination of the facts. In support of its conclusion that counsel did not have "a valid basis for filing a motion to suppress on the basis of police mistreatment," the state post-conviction court found 1) that there was no evidence supporting Petitioner's allegation that he had previously claimed that he was mistreated and beaten by police while in custody, and 2) that both Petitioner's tape recorded statement and Detective Patterson's testimony during trial demonstrated that the interrogation of Petitioner was "very calm, very quiet, very low key, just like a conversation basically." The record supports these factual findings, and Petitioner fails to overcome the presumption of correctness by clear and convincing evidence.

Petitioner does not demonstrate or even allege that he informed trial counsel that he confessed because he was beaten while in custody. And during trial, Petitioner testified that he confessed because the detectives interviewing him acted aggressively toward him, and one detective threw a chair in the room and put his hands in Petitioner's face (Resp. Ex. 1, Vol. V at transcript pp. 495, 511).9 Petitioner did not, however, testify that he was beaten while in custody (Id. at transcript pp. 475-512). Additionally, the tape recording of Petitioner's statement itself gave no indication that Petitioner was beaten or otherwise mistreated while in custody (Id. at transcript pp. 430-46).

Counsel has a duty "to make reasonable investigations" or "to make a reasonable decision that makes particular investigations unnecessary." Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 691). As the Supreme court stated in Strickland:

Strickland, 466 U.S. at 691.

Petitioner has failed to demonstrate that he provided information that would have given counsel reason to investigate whether Petitioner was beaten or mistreated while in custody. Likewise, the tape recording of Petitioner's interview with Detectives Patterson and Licata would give counsel no reason to investigate whether Petitioner was beaten or mistreated. Therefore, counsel was not deficient 1) in failing to investigate whether Petitioner's confession was the product of physical abuse or mistreatment, and 2) in failing to file a motion to suppress on that basis.

The state post-conviction court's denial of this claim was neither contrary to Strickland nor based on an unreasonable determination of the facts. Accordingly, Ground Two, Issue 6 does not warrant federal habeas relief.

G. Issue 7

Petitioner appears to contend that counsel was ineffective in failing to investigate Petitioner's background and present mitigation evidence at sentencing. In state court, Petitioner raised this claim in Issue 7 of his Rule 3.850 motion (Resp. Ex. 6b at pp.). In denying the claim, the state post-conviction court stated:

(Resp. Ex. 14 at p. 12) (footnotes omitted).

The state post-conviction court's determination that Petitioner failed to demonstrate prejudice was not objectively unreasonable, and was not based on an unreasonable determination of the facts. Petitioner was convicted of capital sexual battery in violation of Section 794.011(2)(a), Fla. Stat. (Resp. Ex. 1, Vol. I at record pp. 7-8, 46). In Florida, "[a] conviction for capital sexual battery carries a mandatory sentence of life imprisonment." Peters v. State, 861 So.2d 1236, 1237 n.1 (Fla. 2d DCA. 2003) (citing §§ 794.011(2)(a), 775.082(1), Fla. Stat. (1999)). Therefore, in Petitioner's case there was no question of mitigating factors; once Petitioner was found guilty of capital sexual battery life imprisonment was mandatory. See Buford v. State, 403 So.2d 943, 954 (Fla. 1981) (life sentence for crime of sexual battery upon a child under eleven years of age "is an automatic sentence, and the Court has no discretion."). Accordingly, Petitioner has failed to show deficient performance by counsel in failing to investigate and present mitigation evidence and prejudice.

The state post-conviction court's denial of this claim was neither contrary to Strickland nor based on an unreasonable determination of the facts. Accordingly, Ground Two, Issue 7 does not warrant federal habeas relief.

H. Issue 8

Petitioner contends that trial counsel was ineffective in failing to preserve issues for appeal. Initially, this claim is too vague and conclusory to support a claim of ineffective assistance of counsel because Petitioner does not identify what he contends his counsel failed to preserve for appeal. Petitioner states that "[i]n support of this claim, the Petitioner specifically incorporates all of the foregoing discussion of errors stated above[,]" and "counsel was ineffective and cost him actual prejudice for failing to timely preserve each and every one of the errors alleged in the previous stated grounds for further appellate review." (Dkt. 1 at p. 9). With the exception of Ground One of the petition, the "previous stated grounds" assert ineffective assistance of trial counsel claims, which in Florida generally cannot be raised on direct appeal. See Bruno v. State, 807 So.2d 55, 63 (Fla. 2001) ("a claim of ineffectiveness generally can be raised in a rule 3.850 motion but not on direct appeal."). And there is no indication in the record that the claim asserted in Ground One of the petition, which was raised in Petitioner's Initial Brief on direct appeal (Resp. Ex. 2), was procedurally defaulted in state court because it was not preserved for appeal.

Moreover, in denying Petitioner's claim that trial counsel was ineffective in failing to preserve issues for appeal, the state post-conviction court stated "[h]aving found no error in any of the previous seven grounds . . . the Court further finds that defense counsel could not have been ineffective for failing to preserve such non-meritorious claims." (Resp. Ex. 14 at p. 13). Because Petitioner has failed to show that reversible error occurred during his criminal proceedings, he cannot show counsel rendered deficient performance in failing to preserve issues for appeal. See United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992) (no ineffective assistance of counsel for failing to preserve or argue meritless issue).

The state post-conviction court's denial of this claim was neither contrary to Strickland nor based on an unreasonable determination of the facts. Accordingly, Ground Two, Issue 8 does not warrant federal habeas relief.

I. Issue 9

Petitioner contends that the cumulative effect of trial counsel's errors rendered his trial fundamentally unfair. In denying this claim, the state post-conviction court stated "[h]aving found no individual error in any of the Defendant's other grounds, either preceding or following, this Court finds no merit in the Defendant's claim of cumulative error." (Resp. Ex. 14 at p. 13) (emphasis in original).

Petitioner's claim of cumulative error necessarily fails, since none of his claims of ineffective assistance of counsel have merit. Morris v. Secretary, Dept. of Corrections, 677 F.3d 1117, 1132 (11th Cir. 2012) (where none of individual claims of error or prejudice have merit, "we have nothing to accumulate.").10 Consequently, Petitioner has failed to demonstrate that the state post-conviction court's denial of this claim was contrary to clearly established Supreme Court law, or based on an unreasonable determination of the facts. Accordingly, Ground Two, Issue 9 does not warrant federal habeas relief.

J. Issue 10

In Ground Two, Issue 10, Petitioner asserts:

(Dkt. 1 at p. 10).

In state court, Petitioner raised a similar claim in Issue 10 of his Rule 3.850 motion (Resp. Ex. 6b at pp. 34-35). There, Petitioner appeared to assert that after sentencing, trial counsel was ineffective in 1) abandoning Petitioner after sentencing, and 2) failing to consult with Petitioner regarding the issues to be raised on appeal (Id.). In denying Petitioner's claim that trial counsel abandoned Petitioner after sentencing, the state post-conviction court stated:

(Resp. Ex. 14 at pp. 13-14) (footnotes omitted).11

The state post-conviction court's determination that trial counsel did not abandon Petitioner after sentencing and "took the steps `necessary to protect the Defendant's rights of appeal'" was not objectively unreasonable, and was not based on an unreasonable determination of the facts. When an attorney is asked by the client to file a notice of appeal but disregards that request, the client is denied the effective assistance of counsel. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) ("We have long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable."). When a client fails to make a specific request that an attorney file an appeal, the inquiry is whether the attorney consulted sufficiently with the client about a potential appeal and made a reasonable effort to determine the client's wishes. Gomez-Diaz v. United States, 433 F.3d 788, 791-92 (11th Cir. 2005). If the attorney consulted with the client, the attorney's performance is professionally unreasonable only if he fails to follow the client's instructions. Roe v. Flores-Ortega, 528 U.S. at 478. Here, the principles in Flores-Ortega are inapplicable because it is apparent from the record that after the Judgment was entered on November 29, 2006, Petitioner's trial counsel filed a timely notice of appeal on December 13, 2006, preserving Petitioner's right to appeal (Resp. Ex. 1, Vol. I at record p. 59). Therefore, the state post-conviction court correctly found that trial counsel did not render ineffective assistance because he did not abandon Petitioner, and preserved Petitioner's right to appeal.

To the extent Petitioner's claim may be liberally construed as asserting that counsel was ineffective in failing to consult with Petitioner regarding the issues for appeal before filing the Initial Brief, the claim does not warrant federal habeas relief. "Claims of ineffective assistance of appellate counsel are governed by the same standards applied to trial counsel under Strickland." Philmore v. McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009) (per curiam) (citing Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991)). Appellate counsel's performance is prejudicial if "the neglected claim would have a reasonable probability of success on appeal[.]" Heath, 941 F.2d at 1132.

First, to the extent Petitioner is alleging that trial counsel, Peter Belmont, rendered ineffective assistance on appeal, the record shows that Attorney Belmont did not represent Petitioner on appeal. Rather, Attorney Daniel Castillo represented Petitioner on appeal (Resp. Ex. 2). Therefore, Petitioner cannot show that he was prejudiced by Attorney Belmont's failure to discuss the issues for appeal with Petitioner because Petitioner could have discussed the issues with Attorney Castillo. Second, Petitioner does not even identify the arguments he would have liked appellate counsel to pursue on appeal, let alone demonstrate a reasonable probability that the arguments would have been successful. Consequently, Petitioner has failed to demonstrate that he was prejudiced by counsels' alleged failure to consult with him regarding the issues to be raised on appeal.

Accordingly, Ground Two, Issue 10 does not warrant federal habeas relief.

K. Issue 11

Petitioner, who is black, contends that he was denied equal protection because 1) he was tried before an all-white jury; 2) the prosecutor exercised a peremptory challenge against the only black member of the jury venire on the basis of race; and 3) the racial composition of the jury venire did not represent a fair cross-section of the community. In state court, Petitioner did not raise this claim on direct appeal (see Resp. Ex. 2). Rather, he raised the claim for the first time in his Motion for Leave to Amend Motion for Post-Conviction Relief (Resp. Ex. 7). The state post-conviction court rejected this claim on a procedural basis, stating:

(Resp. Ex. 14 at pp. 14-15) (footnotes omitted).

The failure of a federal habeas petitioner to adhere to state procedural rules governing the proper presentation of a claim generally bars federal review of that claim in a subsequent federal habeas corpus proceeding. See Coleman v. Thompson, 501 U.S. 722 (1991); Wainwright v. Sykes, 433 U.S. 72, 97 (1977); Sims v. Singletary, 155 F.3d at 1311. "However, a state court's rejection of a federal constitutional claim on procedural grounds will only preclude federal review if the state procedural ruling rests upon [an] `independent and adequate' state ground." Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). A state court's procedural ruling constitutes an independent and adequate state rule of decision if (1) the last state court rendering a judgment in the case clearly and expressly states that it is relying on a state procedural rule to resolve the federal claim without reaching the merits of the claim, (2) the state court's decision rests solidly on state law grounds and is not intertwined with an interpretation of federal law, and (3) the state procedural rule is not applied in an "arbitrary or unprecedented fashion," or in a "manifestly unfair manner." Id. The state post-conviction court expressly relied upon an independent and adequate state procedural bar to reject Petitioner's claims. The state appellate court affirmed the application of the procedural bar. Consequently, Petitioner's claims are procedurally defaulted. See Harris v. Reed, 489 U.S. 255, 262 (1989). See also Harmon v. Barton, 894 F.2d 1268, 1274 (11th Cir. 1990) (finding that the state appellate court's per curiam affirmance of the lower court's ruling explicitly based on procedural default is a clear and express statement of its reliance on an independent and adequate state law ground barring federal review).

Under the procedural default doctrine, "[i]f the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is applicable." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). 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). See also Murray v. Carrier, 477 U.S. 478 (1986). To show prejudice, a petitioner must demonstrate not only that the errors at his trial created the possibility of prejudice but that they worked to his actual and substantial disadvantage and infected the entire trial with error of constitutional dimensions. United States v. Frady, 456 U.S. 152 (1982). In other words, he must show at least a reasonable probability of a different outcome. Henderson v. Haley, 353 F.3d 880, 892 (11th Cir. 2003); Crawford v. Head, 311 F.3d 1288, 1327-28 (11th Cir. 2002).

A petitioner may obtain federal habeas review of a procedurally defaulted claim, without a showing of cause or prejudice, if review is necessary to correct a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Carrier, 477 U.S. at 495-96. A fundamental miscarriage of justice occurs in an extraordinary case where a constitutional violation has probably resulted in the conviction of someone who is actually innocent. Schlup v. Delo, 513 U.S. 298, 327 (1995); Henderson, 353 F.3d at 892. This exception requires a petitioner's "actual" innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001). To meet this standard, a petitioner must show a reasonable likelihood of acquittal absent the constitutional error. Schlup, 513 U.S. at 327.

Petitioner fails to demonstrate cause and prejudice excusing his default. Carpenter, 529 U.S. at 451; Carrier, 477 U.S. at 495-96. He neither alleges nor shows that the fundamental miscarriage of justice exception applies. Henderson, 353 F.3d at 892. Because Petitioner fails to proffer specific facts showing an exception to procedural default, Ground Two, Issue 11 is procedurally barred from federal review.

Moreover, even if Ground Two, Issue 11 was not procedurally barred, it would fail on the merits. First, Petitioner's claim that his equal protection rights were violated because he is black and was tried and convicted before an all-white jury does not warrant relief. The Sixth Amendment guarantees a criminal defendant the right to a jury selected from a group representing a fair cross-section of the community. Duren v. Missouri, 439 U.S. 357, 364 (1979). However, "[t]he Constitution does not guarantee a defendant a proportionate number of his racial group on the jury panel or the jury which tries him; it merely prohibits deliberate exclusion of an identifiable racial group from the juror selection process.'" United States v. Jones, 687 F.2d 1265, 1269 (8th Cir. 1982) (citation omitted). Therefore, Petitioner's equal protection rights were not violated if an all-white jury heard his case. See Batson v. Kentucky, 476 U.S. 79, 85 (1986) (a criminal defendant does not have the right to a "petit jury composed in whole or in part of persons of his own race.") (citation omitted); Taylor v. Louisiana, 419 U.S. 522, 538 (1975) (While "petit juries must be drawn from a source fairly representative of the community . . . [there is] no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition, . . . but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.") (internal citations omitted).

Second, Petitioner's challenge to the composition of the jury venire likewise does not warrant relief. Petitioner's Sixth Amendment right is limited to "`the presence of a fair cross-section of the community on venire panels, or lists from which grand and petit juries are drawn.'" Usher v. Mortin, 165 Fed.Appx. 789, 792 (11th Cir. 2006) (quoting United States v. Henderson, 409 F.3d 1293, 1305 (11th Cir. 2005)). To establish a prima facie violation of this right, Petitioner must prove (1) that black persons are a "distinctive" group in the community, (2) that the representation of black persons in venires is not fair and reasonable in relation to the number of such persons in the community, and (3) that this under-representation is due to systematic exclusion of black persons in the jury selection process. Duren v. Missouri, 439 U.S. at 364; United States v. Henderson, 409 F.3d 1293, 1305 (11th Cir. 2005).

Petitioner has failed to offer any evidence showing 1) that the representation of black persons in venires is not fair and reasonable in relation to the number of such persons in the community, and 2) systematic exclusion of black persons from jury selection. Consequently, he cannot establish a violation of the Sixth Amendment with respect to the composition of the jury venire.

Third and finally, this Court cannot say that the state post-conviction court's denial of Petitioner's claim that his equal protection rights were violated when the prosecutor exercised a peremptory challenge against the only black member of the jury venire on the basis of race was contrary to, or an unreasonable application of clearly established federal law, specifically the Supreme Court's holding in Batson, or based on an unreasonable determination of the facts. "In Batson, the Supreme Court held that a prosecutor's use of peremptory strikes in even a single case to remove blacks from the jury on account of their race violates the Equal Protection Clause." United States v. Stewart, 65 F.3d 918, 923 (11th Cir. 1995) (citing Batson, 476 U.S. 79). Batson established the test to be used in determining whether either party engaged in race-based exclusions of potential jurors through peremptory challenges. The test involves a three-step inquiry:

Johnson v. California, 545 U.S. 162, 168 (2005).

Having reviewed the record, the Court concludes that Petitioner failed at trial to make out a prima facie case of purposeful discrimination. When the State exercised a peremptory challenge against Mr. Barton, the only black person on the jury venire (see Resp. Ex. 1, Vol. II at transcript pp. 125-26), defense counsel objected and stated "I mean, just to try and keep things short and complete, yes, we would object. And I think the Court has said they [sic] have found a race-neutral reason." (Id. at transcript p. 128). Defense counsel, however, did not present the trial court with any evidence or argument in support of a Batson violation. Therefore, the only arguable evidence of a Batson violation defense counsel presented at trial was that the State used a peremptory challenge against the only black person on the jury venire. The fact that the State used a peremptory challenge against the only black person on the jury venire, standing alone, does not establish a prima facie showing of racial motivation. See United States v. Allison, 908 F.2d 1531, 1538 (11th Cir. 1990) ("it is not true that all peremptory strikes of black venirepersons are for racial reasons. In making out a prima facie case, the defendant must point to more than the bare fact of the removal of certain venirepersons and the absence of an obvious valid reason for the removal. The defendant must identify facts and circumstances that support the inference of discrimination, such as a pattern of discriminatory strikes, the prosecutor's statements during voir dire suggesting discriminatory purpose, or the fact that white persons were chosen for the petit jury who seemed to have the same qualities as stricken black venirepersons.") (internal quotation marks and citations omitted).

Additionally, even if, for sake of argument, defense counsel had established a prima facie case of discrimination after the State challenged Mr. Barton, defense counsel failed to rebut the State's race-neutral explanation. During voire dire, both Mr. Barton and prospective juror Mr. Pasquantonio expressed that they would have difficulty disregarding a confession even if they believed it was not freely and voluntarily given (Resp. Ex. 1, Vol. II at transcript pp. 102-03, 110-11). The State therefore challenged for cause both Mr. Barton and Mr. Pasquantonio on the ground that they could not follow the law (Id. at transcript pp. 124-26). Although the trial court denied the challenges for cause, the trial court determined that the "State has established a race-neutral reason for a peremptory challenge [against Mr. Barton], particularly since the State is bringing it up against every single juror that's said it." (Id. at transcript p. 126). Therefore, by ruling that the State had provided a "race-neutral reason" for excluding Mr. Barton, the trial court implicitly found the explanation credible.

This Court must presume that finding to be correct. See 28 U.S.C. § 2254(e) (1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."). The trial judge was in the best position to determine the genuineness of the State's reason for striking Mr. Barton. Petitioner has not demonstrated by clear and convincing evidence that it was unreasonable for the state court to accept the State's race-neutral reason. Consequently, the state post-conviction court's denial of Petitioner's claim that the State used a peremptory challenge to remove Mr. Barton from the jury on account of his race was not contrary to Batson, and was not based on an unreasonable determination of the facts in light of the evidence presented in the court.

Accordingly, Ground Two, Issue 11 does not warrant federal habeas relief.

Accordingly, it is ORDERED that:

1. Petitioner's petition for writ of habeas corpus (Dkt. 1) is DENIED because Petitioner's claims are time-barred and without merit.

2. The Clerk shall enter judgment against Petitioner, terminate any pending motions, and close this case.

CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS DENIED

IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of appealability (COA). A petitioner does not have absolute entitlement to appeal a district court's denial of his habeas petition. 28 U.S.C. § 2253(c)(1). A district court must first issue a COA. Id. Petitioner is only entitled to a COA ifhe demonstrates that reasonable jurists would find debatable whether the Court's procedural ruling was correct and whether the § 2254 petition stated "a valid claim of the denial of a constitutional right." Id.; Slack v. McDaniel, 529 U.S. 473, 484 (2000). To make a substantial showing of the denial of a constitutional right, Petitioner "`must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong,'" Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack, 529 U.S. at 484), or that "the issues presented were `adequate to deserve encouragement to proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

DONE AND ORDERED.