IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

FRANCIS X. DECAMBRA,

Petitioner,

v. Case No.: 4:19cv506-MW/MJF

MARK INCH,

Respondent.

___________________________/

ORDER ACCEPTING REPORT AND RECOMMENDATION

This Court has considered, without hearing, the Magistrate Judge’s Report 

and Recommendation, ECF No. 18, and also has reviewed de novo Petitioner’s 

counseled objections to the Report and Recommendation, ECF No. 23.1 Petitioner 

objects to the denial of six of his seven claims (Grounds One through Five and 

Ground Seven).

I agree with the Magistrate Judge’s determination that Petitioner failed to meet 

his high burden under 28 U.S.C. § 2254(d) to warrant habeas relief on any of his 

claims. Only one of Petitioner’s objections warrants discussion—his assertion that 

the Magistrate Judge misunderstood the ineffective assistance of trial counsel claim 

raised in Ground Two.

1 Petitioner has been represented by counsel throughout this proceeding.

Case 4:19-cv-00506-MW-MJF Document 24 Filed 08/18/21 Page 1 of 7
2

Petitioner contends that the Magistrate Judge “clearly misunderstood,” ECF 

No. 23 at 5, the claim presented in Ground Two. The Magistrate Judge’s Report and 

Recommendation quoted Petitioner’s ineffective assistance claim verbatim from 

Petitioner’s amended petition, and accurately summarized it. The Magistrate Judge 

construed Petitioner’s claim as challenging (1) counsel’s alleged failure to object to 

evidence that the victims were deemed “disabled” by the State of Florida for 

purposes of receiving services from the Agency for Persons with Disabilities; and 

(2) counsel’s alleged failure to object to the prosecutor’s closing argument on the 

elements of disability and lack of ability to consent. ECF No. 18 at 33-38.

Petitioner’s objection states that his amended petition did not take the position 

that counsel should have objected to testimony that the victims had been deemed 

disabled by the State of Florida. ECF No. 23 at 5. But that is precisely how he 

identified his claim in his petition, and that is precisely what he argued. ECF No. 3 

at 13-15. Specifically, Petitioner complained that “trial counsel did not file any

pretrial motions to exclude” testimony that “the alleged victims had previously been 

evaluated by the State of Florida and had been deemed ‘disabled,’ so as to receive 

services through the Agency for Persons with Disabilities.” ECF No. 3 at 14-15

(emphasis added). Petitioner also complained that counsel “did not object to the 

testimony when it was presented at trial.” Id. at 15 (emphasis added). To support his 

claim, Petitioner emphasized that “[b]eing disabled for state-provided services is not 

Case 4:19-cv-00506-MW-MJF Document 24 Filed 08/18/21 Page 2 of 7
3

the equivalent of being disabled under the criminal statute relating to the underlying 

charges and was, regardless, a matter for the jury to resolve.” ECF No. 3 at 14. The 

Report and Recommendation addressed these arguments and correctly concluded 

that the state court reasonably rejected them. ECF No. 18 at 33-38.2 Petitioner has 

not demonstrated that that conclusion is erroneous. I also note that in an attempt to 

show that the Magistrate Judge misconstrued his claim, Petitioner now concedes that 

trial counsel was not ineffective for failing to object to testimony that the victims 

were deemed disabled by the State of Florida for purposes of receiving Agency

services. ECF No. 23 at 6, 7.

3

I now turn to Petitioner’s contention that the Magistrate Judge erred in failing 

to recognize that his petition also raised the issue “that the trial attorney was 

ineffective by agreeing with the State that if the State proved A.R. and W.M. were 

2 The failure to object to testimony of disability is precisely the claim Petitioner presented 

to the state postconviction court in his Rule 3.850 motion and at the state postconviction 

evidentiary hearing. ECF No. 13-1, Ex. J at 26-30 (Postconviction Mot.); Ex. J at 175-177 

(Postconviction Counsel’s Cross-Examination of Trial Counsel); Ex. J at 194-97 (Postconviction 

Counsel’s Arg.); Ex. J at 53 (Order Denying Postconviction Relief). 

3 Petitioner’s objections to the Report and Recommendation also go so far as to state that 

“it was uncontested that the [the victims] were indeed disabled.” ECF No. 23 at 5; see also id. at 

7 (stating that the element of whether the victims were “disabled” within the meaning of the 

criminal statute “was an uncontested element of the crime.”). This is an about-face from 

Petitioner’s argument in his amended petition, ECF No. 3 at 14-15, and it also is contrary to the 

trial transcript which demonstrates that that was a contested element, at least with regard to A.R. 

ECF No. 13-1, Exs. C-E (Trial Tr.), Ex. J at 175 (Postconviction Evidentiary Hr’g Tr.). I make 

note of Petitioner’s about-face on this issue, and his present concession that he “does not disagree 

that they were disabled,” ECF No. 23 at 7, because it further demonstrates that Petitioner is not 

entitled to habeas relief on his claim that trial counsel was ineffective for failing to exclude 

testimony and argument on the “disabled person” element of the offenses.

Case 4:19-cv-00506-MW-MJF Document 24 Filed 08/18/21 Page 3 of 7
4

‘disabled,’ then the jury had to accept that they were unable to consent to sexual 

intercourse as a matter of law.” ECF No. 23 at 5 (emphasis in original). Petitioner

explains:

The issue raised in Petitioner’s habeas petition is that after the testimony 

on disability was admitted, trial counsel stood by and did nothing when

the State advised the jury that the only evidence required to prove 

inability to consent was that the alleged victims suffered from 

disabilities.

Id. at 6 (emphasis added). 

In his amended petition and supporting memorandum, Petitioner faulted trial 

counsel for “failing to object” to “the prosecution’s arguments that the State of 

Florida’s prior determination of being ‘disabled’ in a non-criminal context 

established that the alleged victims were ‘disabled’ in the criminal context as well.” 

ECF No. 3 at 15. In his supporting memorandum, Petitioner claimed that counsel 

also failed to object when the prosecutor “falsely informed the jury that any adult 

with a disability was a disabled adult who lacked capacity to consent to sexual 

activity.” ECF No. 6 at 21. 

The Magistrate Judge’s Report and Recommendation addressed trial 

counsel’s alleged failure to object to the prosecutor’s arguments. ECF No. 18 at 33, 

36-38. The Magistrate Judge concluded that a fairminded jurist could agree with the 

state court’s rejection of this aspect of Petitioner’s claim, because the prosecutor did 

not mislead the jury or improperly urge the jury to find that W.M.’s and A.R.’s 

Case 4:19-cv-00506-MW-MJF Document 24 Filed 08/18/21 Page 4 of 7
5

classification as “disabled” for purposes of receiving Agency services satisfied the 

“disabled adult” and “lack of capacity to consent” elements of the criminal statutes. 

ECF No. 18 at 36-38. I have reviewed the prosecutor’s closing argument and agree 

with the Magistrate Judge’s conclusion. See ECF No. 13-1, Ex. E at 332-351 (Trial 

Tr.). Petitioner has failed to demonstrate that that conclusion is erroneous.

With regard to Petitioner’s particular assertion in his objections—that trial 

counsel “agree[d] with the State that if the State proved A.R. and W.M. were 

‘disabled,’ then the jury had to accept that they were unable to consent to sexual 

intercourse as a matter of law”—nothing could be further from the truth. In defense 

counsel’s closing argument, he maintained that the “central issue” in the case was 

“whether or not [W.M.] and whether or not [A.R.] possessed the capacity to consent. 

That’s the central issue in this case.” ECF No. 13-1, Ex. E at 352-353. Defense

counsel devoted the vast majority of his argument to this subject:

The State elicited a lot of testimony with respect to [A.R.’s] been 

found to be disabled by the State of Florida. That isn’t what the law 

requires under the statute. Okay. It doesn’t require that it’s a strict 

liability crime[—]If you find that he’s disabled, therefore, 

automatically you find that he can consent.

No. They’re separate elements to this. That’s not enough.

ECF No. 13-1, Ex. E at 354. 

Defense counsel continued this refrain throughout the entirety of his closing 

argument. Id. at 354-364. Even earlier in the trial, when defense counsel moved for 

Case 4:19-cv-00506-MW-MJF Document 24 Filed 08/18/21 Page 5 of 7
6

a judgment of acquittal, he hammered the point time and again that the State failed 

to present sufficient evidence that either victim lacked the capacity to consent. ECF 

No. 13-1, Ex. D at 271-280. The trial transcript conclusively refutes Petitioner’s

contention that trial counsel “presented absolutely no defense because he mistakenly 

believed” that “disability equaled lack of ability to consent.” ECF No. 23 at 6. 

For all of the foregoing reasons, I agree with the Magistrate Judge’s 

determination that the state court’s rejection of Petitioner’s ineffective assistance 

claim did not involve an unreasonable application of the Strickland standard.

Petitioner is not entitled to habeas relief on Ground Two or on any of his other 

claims.

Accordingly, IT IS ORDERED:

The report and recommendation, ECF No. 18, is accepted and adopted, over 

Petitioner’s objections, as this Court’s opinion with the additional remarks above. 

The Clerk shall enter judgment stating, “The amended petition for writ of habeas 

corpus, ECF No. 3, challenging the judgment of conviction and sentence in State of 

Florida v. Francis X. Decambra, Leon County Circuit Court Case No. 2009-CF831, is DENIED. A Certificate of Appealability is DENIED.” The Clerk shall close 

Case 4:19-cv-00506-MW-MJF Document 24 Filed 08/18/21 Page 6 of 7
7

the file.

SO ORDERED on August 18, 2021.

s/Mark E. Walker ____

Chief United States District Judge

Case 4:19-cv-00506-MW-MJF Document 24 Filed 08/18/21 Page 7 of 7