IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

MICHAEL A. McDONALD, 

Petitioner,

vs. Case No. 4:10cv428-RH/CAS

MICHAEL D. CREWS,

Respondent.

 /

REPORT AND RECOMMENDATION TO DENY § 2254 PETITION

Petitioner Michael A. McDonald, proceeding pro se, filed a 28 U.S.C. § 2254

petition on October 3, 2010. Doc. 1. On April 6, 2012, Respondent filed an answer,

with exhibits. Doc. 25. Petitioner filed a reply on May 5, 2013. Doc. 43. 

The matter was referred to the undersigned United States Magistrate Judge for

report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of

Florida Local Rule 72.2(B). After careful consideration of all issues raised, the

undersigned has determined that no evidentiary hearing is required for disposition of

this matter. See Rule 8(a), R. Gov. § 2254 Cases in U.S. Dist. Cts. For the reasons

stated herein, the pleadings and attachments before the Court show that Petitioner is

not entitled to federal habeas relief, and the § 2254 petition should be denied. 
Page 2 of 100

Relevant Procedural History

By amended information filed in the Second Judicial Circuit, Gadsden County, in

case number 03-538-CFA, the State of Florida charged Petitioner McDonald with two

counts, in connection with events that took place on July 10, 2003: (1) sexual battery on

a child less than twelve (12) years old, while the defendant was eighteen (18) years old

or older, a capital felony in violation of section 794.011(2)(a), Florida Statutes; and (2)

lewd or lascivious molestation, a first degree felony in violation of section 800.04(5)(b),

Florida Statutes. Doc. 25 Ex. A at 30 (amended information); see id. at 5 (information). 

The victim in both counts was T.W. Doc. 25 Ex. A. at 30. 

McDonald proceeded to trial beginning on March 31, 2004, and concluding the

next day. See Doc. 25 Exs. B and C. The victim, T.W., testified via closed circuit

television. Id. Ex. B at 178-220. McDonald did not testify. See id. Ex. C at 282-83. 

On April 1, 2004, the jury returned verdicts finding McDonald guilty as charged

on both counts. Id. Ex. A at 31-32. The trial court adjudicated McDonald guilty and

sentenced him to life in prison without parole on the first count, and thirty (30) years in

prison on the second count, with the sentences to run concurrently. Id. at 37-38. 

McDonald filed a motion for a new trial. Id. at 45-48. In the motion, McDonald

argued the child victim, T.W., was permitted to testify via closed circuit television in

violation of his rights and over his objection. Id. at 46. McDonald asserted that, during

her testimony, T.W. “was sitting on the ‘talking-doctor’s’ lap, holding her hand, and

apparently receiving positive and negative reinforcement pertaining to the child victim’s

answers.” Id. McDonald argued “[t]here was no discussion concerning the presence of

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the ‘talking-doctor’ who, in effect, was a witness by proxy in that she assisted and

influenced the child victim’s testimony contrary to law. Lewis v. State, 626 So. 2d 1073

(Fla. 1st DCA 1993).” Doc. 25 Ex. A at 46-47. McDonald also argued that the State

failed to disclose, in violation of Brady v. Maryland, 373 U.S. 83 (1963), the name of the

“talking-doctor” or give “any information to the defense as to the length of the childvictim’s counseling or the subjects contained within this counseling.” Id. at 47.

On May 4, 2004, the trial court held a hearing on McDonald’s motion for a new

trial. See Doc. 25 Ex. D. The court denied the motion. Id. at 18. 

McDonald appealed his judgment and sentence, as well as the denial of the

motion for a new trial, to the First District Court of Appeal (DCA), assigned case number

1D04-2269. See Doc. 25 Ex. A at 49, Ex. E. McDonald’s Initial Brief raised one point:

Whether the trial court erred by allowing T.W. to testify via closed circuit television. Id.

Ex. E. The First DCA affirmed the case without an opinion on July 22, 2005, with one

judge dissenting, also without an opinion. Id. Ex. H; see McDonald v. State, 907 So. 2d

521 (Fla. 1st DCA 2005) (table). The mandate issued August 9, 2005. See online

docket for 1D04-2269 at www.1dca.org. McDonald’s counsel filed a motion to withdraw

the mandate and to issue a written opinion on August 16, 2005. See id. By order dated

August 30, 2005, the First DCA denied that motion. See id. 

On September 21, 2006, McDonald, proceeding pro se, filed motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, with a

memorandum of law. Doc. 25 Ex. Y at 1-79. McDonald raised multiple claims for relief,

including twenty-two (22) claims of ineffective assistance of counsel under Ground 1,

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three (3) claims of legal error by the trial court in Ground 2, and six (6) claims alleging

due process violations in Ground 3. Id. McDonald also filed a supplement to his Rule

3.850 motion. Id. Ex. Z at 125-32. The State filed a response to McDonald’s motion. 

Id. at 133-52. McDonald filed a reply. Id. Ex. AA at 156-79. 

On July 14, 2007, McDonald filed a motion to correct an illegal sentence

pursuant to Florida Rule of Criminal Procedure 3.800. Doc. 25 Ex. K at 1-6. McDonald

argued his sentence was illegal because section 794.011(2)(a), Florida Statutes, was

unconstitutional, and he attached a memorandum of law. Id. at 1. The trial court

denied the motion on September 17, 2007. Id. at 59. McDonald appealed to the First

DCA, and he filed an initial brief, in case number 1D07-6183. Id. Ex. L. The State did

not file an answer brief. Id. Ex. M. On July 18, 2008, the First DCA per curiam affirmed

the case without a written opinion. Id. Ex. N.; McDonald v. State, 989 So. 2d 641 (Fla.

1st DCA 2008) (table). McDonald filed a motion for rehearing, which the court denied. 

Doc. 25 Exs. O and P. The mandate issued September 24, 2008. Id. Ex. Q.

On July 19, 2007, McDonald filed in the First DCA a “petition for new appeal”

alleging ineffective assistance of appellate counsel and raising five grounds. Doc. 25

Ex. I. The case was assigned number 1D07-3839, treated as a petition alleging

ineffective assistance of appellate counsel, and denied on the merits on August 13,

2007. Id. Ex. J; McDonald v. State, 963 So. 2d 304 (Fla. 1st DCA 2007).

Also on July 19, 2007, McDonald filed in the state post-conviction trial court a

motion to withdraw or dismiss his supplement to his Rule 3.850 motion, and proceed on

his motion as originally filed. Doc. 25 Ex. AA at 181. McDonald also filed a motion

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requesting the appointment of counsel to assist him at the evidentiary hearing. Id. at

183. The trial court granted these motions and appointed counsel to represent

McDonald. Id. at 186, 189. The trial court rescheduled the evidentiary hearing, which

ultimately took place on June 16, 2008. See id. Ex. BB; see also id. Ex. AA at 187,

196. 

Prior to the evidentiary hearing, the state post-conviction trial court entered a

non-final order, on April 14, 2008, partially denying McDonald’s Rule 3.850 motion and

limiting the issues for the hearing. Id. Ex. AA at 197-98. The court found:

[A]ll of the grounds and multiple “claims” that are contained within the

grounds, save one, are legally insufficient and either fail to state a legal

basis for relief, or are contrary to the record, or are conclusory, or are

redundant, or could have been, should have been or were raised on direct

appeal, or are alleged trial judge errors and not appropriate subjects for

post conviction relief, or clearly involve tactical decisions by defendant’s

trial attorney. Moreover, even if the claims were legally sufficient, the

defendant has failed to demonstrate prejudice, that is, has failed to allege

and demonstrate that the outcome of the trial would have been different. 

See Preston v. State, 970 So. 2d 789 . . . (Fla. 2007) and Strickland v.

Washington, 466 U.S. 668 . . . (1984).

Id. The court limited the issue at the hearing “to whether or not trial counsel, John

Eagen, was ineffective due to alleged incapacity after having suffered seizures in the

days immediately preceding the defendant’s jury trial.” Id. at 198. 

On May 8, 2008, McDonald filed an Unequivocal Demand for SelfRepresentation, in which he requested the court “to recognize his absolute right to

represent himself” and allow appointed counsel to remain as co-counsel and assist him. 

Id. at 199. By order dated May 15, 2008, the trial court granted McDonald’s motion to

represent himself and denied the request to designate appointed counsel as coCase No. 4:10cv428-RH/CAS
Page 6 of 100

counsel. Id. at 201. The court removed appointed counsel from the case and relieved

him from any further responsibility. Id. 

McDonald then filed a motion for rehearing and clarification concerning the April

14, 2008, non-final order. Id. at 202-04. McDonald requested clarification as to why his

claims were legally insufficient and he asserted that he was entitled to amend his Rule

3.850 motion to correct any legal insufficiencies. Id. at 202. The trial judge wrote “no

judicial action required,” and initialed it on May 16, 2008. Id.; see Doc. 25 Ex. BB at 3. 

On May 31, 2008, McDonald filed a petition for writ of prohibition in the First

DCA, assigned case number 1D08-2832, asserting the post-conviction trial court erred

by failing to allow him the opportunity to amend his claims and present them at the

evidentiary hearing. Doc. 25 Ex. W. On July 8, 2008, the First DCA denied the petition

with a citation to English v. McCrary, 348 So. 2d 293 (Fla. 1977). Doc. 25 Ex. X. 

On June 8, 2008, McDonald also filed in the First DCA a petition for writ of

mandamus. Doc. 25 Ex. R. In this petition, assigned case number 1D08-2634,

McDonald challenged the post-conviction trial court’s refusal to rule on his motion for

rehearing or clarification. Id. The State filed a response, explaining that McDonald’s

motion concerned a non-final order, and a final order had not yet been entered. Id. Ex.

U. On August 8, 2008, the First DCA denied the petition on the merits. Id. Ex. V. 

When McDonald filed the mandamus petition in the First DCA, he also filed a

request for a stay of proceedings in the state post-conviction trial court. Id. Ex. AA at

219-20. The trial court denied that motion by order dated June 5, 2008. Id. at 221.

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McDonald then filed a motion to disqualify the state post-conviction trial court

judge from further consideration of the case. Doc. 25 Ex. AA at 223-25. The court

denied that motion on June 16, 2008. Id. at 226. McDonald appealed this order to the

First DCA, where it was assigned case number 1D08-4097, and he filed an initial brief. 

Id. at 232; see id. Ex. CC. The First DCA redesignated the appeal as a petition for writ

of prohibition by order dated September 22, 2008, and denied it on the merits by

opinion filed October 28, 2008. Id. Exs. GG, HH. 

Meanwhile, on June 16, 2008, the court held the evidentiary hearing on claim 21

of McDonald’s Rule 3.850 motion. Doc. 25 Ex. BB. At the outset of the hearing,

McDonald asserted that he should be permitted to amend his Rule 3.850 motion

pursuant to Spera v. State, 971 So. 2d 754 (Fla. 2007). Id. at 3-6. The court indicated

Spera should not apply to this case because Spera does not apply retroactively. Id. at

5-6. McDonald then filed another motion to disqualify the judge, which was denied. Id.

at 7. McDonald told the court he was not prepared because the court had not ruled on

his request to have experts assist him in preparing and arguing his claims concerning

trial counsel’s head injury; he further indicated he did not know whether his attorney had

subpoenaed the experts. Id. at 7-8. The court reminded McDonald that McDonald had

made an unequivocal request to represent himself, which the court had granted. Id. at

8-9. The court indicated that “this is your only opportunity so I would suggest that you

make your argument on the ground that I set for a hearing if you’re going to make it.” 

Id. at 9. McDonald indicated that, because the court had denied him the opportunity to

amend his Rule 3.850 motion, “the defense is of the position that we decline to

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participate in these proceedings.” Id. at 9. The judge reminded McDonald that “[t]oday

is the day for an evidentiary hearing on one ground” and asked whether he was going

forward or not “because otherwise you’re going to lose on that ground.” Id. at 9-10. 

McDonald responded, “On that one claim, 21, I choose not to participate, Your Honor.” 

Id. at 10. The judge indicated if he did not go forward, he would waive that claim. Id. at

11. McDonald said he did not wish to waive the claim and reiterated that he had been

denied an opportunity to amend his motion. Id. at 11-12. The following then transpired:

THE COURT: You don’t understand, Mr. McDonald, by not having it

today, you’re waiving it. By not going forward today, you’re waiving it, that

claim, for all time. We’re ready, Mr. Eagen is here, everybody is ready to

proceed. If you don’t go forward on that claim now, you’re waiving that

claim for all time, do you understand?

THE DEFENDANT: I understand, Your Honor.

THE COURT: Is that what you want to do?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Okay. That’s fine with me.

Id. at 12. 

On October 31, 2008, McDonald filed a petition for writ of mandamus in the

Florida Supreme Court, asking the court to declare section 794.011(2)(a), Florida

Statutes, unconstitutional. Doc. 25 Ex. II. On February 19, 2009, the Florida Supreme

Court denied the petition as procedurally barred. Id. Ex. JJ; McDonald v. State, 1 So.

3d 172 (Fla. 2009). 

McDonald also filed a petition for writ of certiorari in the U.S. Supreme Court, in

December 2008. Doc. 25 Ex. KK. He presented five issues, including whether section

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794.011(2)(a), Florida Statutes, was facially unconstitutional. Id. On February 23,

2009, the U.S. Supreme Court denied the petition. Id. Ex. MM.

Meanwhile, in November 2008, McDonald filed in the state post-conviction trial

court another motion for leave to file an amended Rule 3.850 motion, which the court

granted. See Doc. 25 Ex. OO at 75. Accordingly, on January 21, 2009, McDonald filed

an amended Rule 3.850 motion, raising seven (7) grounds. Doc. 25 Ex. NN at 1-43. 

The State filed a response, and McDonald filed a reply. See id. Ex. OO at 79-103

(State’s Response); Ex. RR at 299-313 and Ex. SS at 314-28 (Defendant’s Reply). On

August 28, 2009, the state post-conviction trial court entered an order summarily

denying McDonald’s amended Rule 3.850 motion. Id. Ex. SS at 331-33. 1

McDonald appealed the denial of his amended Rule 3.850 motion to the First

DCA and filed a brief, in case number 1D09-6506. Doc. 25 Ex. BBB. The State did not

file an answer brief. Id. Ex. CCC. The First DCA per curiam affirmed the case without

an opinion on July 2, 2010. Id. Ex. DDD; see McDonald v. State, 43 So. 3d 697 (Fla.

1st DCA 2010) (table). McDonald filed a motion for rehearing. Doc. 25 Ex. EEE. The

First DCA denied that motion on September 15, 2010. Id. Ex. FFF. The mandate

issued October 1, 2010. Id. Ex. GGG. 

As indicated above, on October 3, 2010, McDonald filed a § 2254 petition in this

Court. Doc. 1. Respondent filed a response, with exhibits. Doc. 25. McDonald has

filed a reply. Docs. 43, 43-1.

This order was entered by a successor judge to the judge who presided over the 1

June 2008 evidentiary hearing.

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Analysis

Pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective

Death Penalty Act of 1996 (AEDPA), federal courts may grant habeas corpus relief for

persons in state custody. In pertinent part, § 2254 provides:

(d) An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim --

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or 

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State

court proceeding. 

28 U.S.C. § 2254(d). The phrase “clearly established Federal law” refers to “the

governing legal principle or principles set forth by the Supreme Court at the time the

state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). “A

state court decision is ‘contrary to’ clearly established federal law if either (1) the state

court applied a rule that contradicts the governing law set forth by Supreme Court case

law, or (2) when faced with materially indistinguishable facts, the state court arrived at a

result different from that reached in a Supreme Court case.” Putman v. Head, 268 F.3d

1223, 1241 (11th Cir. 2001). A state court decision constitutes an “unreasonable

application” of clearly established federal law if it: (1) “identifies the correct legal rule

from Supreme Court case law but unreasonably applies that rule to the facts of the

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petitioner's case,” or (2) “unreasonably extends, or unreasonably declines to extend, a

legal principle from Supreme Court case law to a new context.” Id.

In this case, in his § 2254 petition, McDonald raises nine grounds:

(1) Section 794.011(2)(a), Florida Statutes, is facially unconstitutional and

McDonald’s sentence is illegal, doc. 1 at 4-5;

(2) McDonald was denied effective assistance of counsel at trial, due

process, equal protection of the law, fair notice, and fair trial contrary to

the U.S. Constitution, where trial counsel was ineffective for failure to

move to nol pros or discharge McDonald of an unlawfully amended

information, and the trial court had no jurisdiction to proceed and enter

judgment and sentence, id. at 5-6; 

(3) Trial counsel was ineffective due to incapacity from head injuries, id. at

7;

(4) Ineffective assistance of counsel (IAC) for failure to object to

impermissible cumulative hearsay and failure to move to exclude the

same, id. at 8-9;

(5) IAC for failure to contact experts to determine the potential value of

their testimony, failure to present expert witnesses to refute the State’s

allegations at trial, and failure to call McDonald’s wife as an important fact

witness, id. at 9-11;

(6) IAC for failure to impeach the State’s witnesses and failure to move to

disqualify and exclude their testimony, id. at 11-13;

(7) IAC for failure to object to prosecutorial misconduct, id. at 13.

(8) IAC due to cumulative effect of trial counsel’s errors and counsel was

additionally ineffective for failure to move for a judgment of acquittal (JOA)

or submit a more artfully presented motion for JOA alleging insufficiency

of the evidence and the failure of the State to satisfy the corpus delicti

requirement of proof beyond a reasonable doubt, id. at 14-15; 

(9) McDonald’s right to confrontation and fair trial were violated where the

trial court allowed T.W. to testify via closed-circuit television over

McDonald’s objection, id. at 16-17. 

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Respondent asserts that McDonald’s § 2254 petition appears timely. Doc. 25 at 44. 

Respondent also asserts that McDonald’s claims, to the extent they were presented to

the state courts, were all adjudicated on the merits and the Florida courts’ decisions do

not contravene or unreasonably apply U.S. Supreme Court precedent. Id. at 41-42. 

Respondent further asserts that, as to Grounds 3, 4, 5, 6, 7, and 8, McDonald

did not properly exhaust these claims because he did not sufficiently raise them on

appeal from the denial of his Rule 3.850 motion. Doc. 25 at 59, 67, 75, 86, 99, 108. 

Respondent points out that McDonald simply listed each claim in the table of contents

of his brief and this does not constitute proper pleading. Thus, Respondent argues

McDonald did not satisfy the exhaustion requirement and is now procedurally barred

from raising these claims in his § 2254 proceeding, and further McDonald has not

shown cause or prejudice to overcome the bar. Doc. 25 at 62, 72, 79, 92, 102, 111-12. 

As an initial matter, McDonald’s brief filed in the First DCA, though bare-bones,

did list his IAC claims under the first point, as Respondent acknowledges. See Doc. 25

Ex. BBB at ii. In addition, McDonald asserts in his brief that “[t]he legal basis for relief

of McDonald’s 3.850 issues is well established in his Amended Motion and Reply to

State’s Response.” Id. at 1. He, in effect, adopts those arguments in his brief as he

indicates he “would not burden this Court with unnecessary repetition, and thus

advances this Brief solely to provide additional information” the court may find useful.

Id. at 1-2. In his brief, he stated that all his claims “are federal in caliber, involving

substantial deprivation of his constitutional rights, and should be given due

consideration.” Id. at 2. He also pointed out that no evidentiary hearing had taken

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place in the state post-conviction trial court on his amended Rule 3.850 motion. Id. 

Therefore, contrary to Respondent’s argument concerning exhaustion, it appears

McDonald did sufficiently present his arguments on appeal from the denial of his

amended Rule 3.850 motion. See generally Henry v. Dep’t of Corr., 197 F.3d 1361,

1368 (11th Cir. 1999) (holding that where petitioner raised two IAC claims in Rule 3.850

motion, which was summarily denied, and on appeal, petitioner alleged error based only

on failure to hold evidentiary hearing, state court appeal sufficed to exhaust petitioner’s

IAC claims in state court for purposes of § 2254). 

McDonald’s claims are addressed individually below, beginning with the first and

last grounds, followed by the remaining grounds, all of which allege IAC claims. 

Because McDonald’s claims do not warrant federal habeas relief, his § 2254 petition

should be denied on the merits.

Ground 1: Section 794.011(2)(a), Florida Statutes, is Facially Unconstitutional

In the first ground, McDonald argues the statute under which he was charged

and convicted, section 794.011(2)(a), Florida Statutes (2003), is facially

unconstitutional. Doc. 1 at 4. McDonald further argues his sentence is illegal because

sexual battery of a child under twelve (12) years old is a capital felony for which the

death penalty cannot be imposed. Id. 

In response, Respondent expressly asserts and declines to waive any applicable

defense or procedural bar. Doc. 25 at 28. Respondent further argues McDonald’s

claim that the statute is unconstitutional lacks merit. Id. at 49; see Batie v. State, 534

So. 2d 694 (Fla. 1988). In addition, Respondent points out that McDonald received a

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life sentence, not the death penalty; therefore, U.S. Supreme Court precedent was not

violated. Doc. 25 at 50; see Kennedy v. Louisiana, 554 U.S. 407 (2008).

Respondent’s points are well-taken. Although the crime at issue is “capital

sexual battery,” it is not a capital offense because it is not subject to the death penalty. 

See Buford v. State, 403 So. 2d 943 (Fla. 1981) (holding that death cannot be imposed

for sexual battery of child); see also, e.g., Huffman v. State, 813 So. 2d 10, 12 (Fla.

2000) (explaining “even if a felony is classified in the Florida Statutes as a capital

offense, it is not ‘capital’ under case law unless its subject to the death penalty”); State

v. Hogan, 451 So. 2d 844, 845-46 (Fla. 1984) (“Sexual battery of a child, therefore,

while still defined as a ‘capital’ crime by the legislature, is not capital in the sense that a

defendant might be put to death. Because the death penalty is no longer possible for

crimes charged under subsection 794.011(2), a twelve-person jury is not required when

a person is tried under that statute.”). The statute at issue, section 794.011(2)(a),

Florida Statutes (2003), proscribing capital sexual battery, which is punishable by life in

prison without the possibility of parole, is not unconstitutional and McDonald’s sentence

is not illegal. See Adaway v. State, 902 So. 2d 746 (2005) (holding defendant’s

sentence of life in prison without parole for violating section 794.011(2)(a) not

unconstitutional). Accordingly, this ground should be denied. 

Ground 9: Violation of Rights to Confrontation and Fair Trial 

by Allowing T.W. to Testify Via Closed-Circuit Television

In Ground 9, McDonald argues his rights to confront witnesses and a fair trial

were violated when the state trial court allowed the victim, T.W., to testify via one-way

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closed-circuit television. Doc. 1 at 16. McDonald asserts that the testimony presented

to the court, just prior to trial, by the State’s expert witness, Dr. Knobbe, failed to

establish the required likelihood of mental harm to T.W. as a direct result of having to

testify in McDonald’s presence. Id. McDonald asserts the trial court failed to make the

requisite case-specific findings on the record and instead made only general findings as

to why T.W. would suffer harm. Id. McDonald argues the trial court’s ruling failed to

satisfy the legal requirement and resulted in a decision contrary to the U.S. Constitution,

depriving him of his fundamental rights to confrontation and a fair trial. Id. McDonald

also argues that without T.W.’s closed circuit testimony at trial, her hearsay statements

offered by her mother, neighbor, and Kimberly Ellis, would not have been admissible,

and the State’s case would have failed due to insufficient evidence. Id. at 16-17.

Respondent points out that McDonald raised this claim in his direct appeal. Doc.

25 at 116. Respondent argues, on the merits, that the state court’s ruling was not

contrary to or an unreasonable application of U.S. Supreme Court precedent. Id. at

117. Respondent explains that, in Maryland v. Craig, 497 U.S. 836 (1990), the Court

approved the use of one-way closed circuit television for a child victim to testify in child

abuse cases, where the trial court finds the emotional distress that would be suffered by

the child witness in the presence of the defendant is more than de minimis. Doc. 25 at

118-19. In this case, Respondent asserts that Dr. Knobbe opined there was a

substantial likelihood T.W. would suffer at least moderate mental or emotional damage

if she was forced to confront McDonald in open court. Respondent indicates that, in

granting the motion to allow T.W. to testify via closed-circuit television, the court made a

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finding on the record that “there is a substantial likelihood that she would suffer at least

moderate emotional or mental harm due to – if she’s required to testify in the presence

of the defendant in open court.” Doc. 25 Ex. B at 38. Therefore, according to

Respondent, McDonald is not entitled to relief.

As an initial matter, as Respondent indicates, McDonald argued in his direct

appeal to the First DCA that the trial court erred in allowing T.W. to testify via closedcircuit television. See Doc. 25 Ex. E. The First DCA affirmed without an opinion, with

one judge dissenting. Id. Ex. H. McDonald’s appellate briefs cited only Florida state

cases and statutes, with the exception of one string cite that included the Sixth and

Fourteenth Amendments to the U.S. Constitution. See id. Ex. E at ii, 8, 9 (string cite);

Ex. G. The State’s answer brief did cite to federal law, including Craig. See id. Ex. F at

14. Because McDonald included one set of citations to the U.S. Constitution and the

state case law relied on in his briefs discussed the constitutional right to be confronted

with the witnesses against him, such as Hopkins v. State, 632 So. 2d 1372 (Fla. 1994),

and Lewis v. State, 626 So. 2d 1073 (Fla. 1st DCA 1993), McDonald at least arguably

“fairly presented” his federal claim to the state court. See Lucas v. Sec’y, Dep’t of Corr.,

682 F.3d 1342, 1352-53 (11th Cir. 2012). 

A review of the record reflects that, on the morning of trial, March 31, 2004, just

before the trial started, a hearing took place regarding a motion filed by the State the

previous day, for closed-circuit camera testimony from the victim, T.W., pursuant to

section 92.54, Florida Statutes (2003). See Doc. 25 Exs. A at 23-24 (motion), B at 4-40. 

The prosecutor, Francis Allman, stated that Dr. Thomas Knobbe was “in my office now,

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talking with the victim T.W. to ascertain if she would suffer the requisite mental and

emotional harm that is required for use of that statute to allow the testimony.” Id. Ex. B

at 4. The trial judge asked defense counsel to respond, and defense counsel stated:

Yes, Your Honor. Well, I’m somewhat upset and taken aback that

the State has called Dr. Knobbe to interview this child and to appear, we

assume, to offer expert testimony on behalf of the State with no notice to

us of their intent to have the child seen by Dr. Knobbe and having us to

have no ability to have our own expert interview the child to determine

whether or not there was trauma. This case happened back in July of

2003, and you’re gonna tell me that now, the day of trial, they are finally

getting this child to see a counselor or to see someone to see if there was

trauma? And then, too, they’re gonna bring in that expert to testify, when

we’ve had no opportunity to depose the expert, no opportunity to obtain

an expert of our own to interview this child? I mean, I think that’s totally

unfair to Mr. McDonald.

You viewed the tape [made by the Child Protective Team (CPT)],

Your Honor, and I have viewed the tape. I don’t see – I didn’t see any

evidence of trauma during that interview. The evidence I think that I

received through discovery was that, allegedly, after the child made the

disclosure to the neighbor [Leshone Davis], she ran back and was in the

care of the – given right back to the – to Mr. McDonald. And after the

child talked to the mother, the child sat down and was eating dinner with

Mr. McDonald until the mother left with the child to go to another home.

I’m opposed to, you know, to this whole – I reviewed the

information provided to me by the State. I think Lewis v. State, which

seems to be the primary case in this issue, requires a finding – a

substantial finding that this child is gonna experience trauma. And to

have Dr. Knobbe come in here at the ninth hour, the day of trial, to offer

expert testimony and his opinion as to the trauma of this child, I think

that’s totally unfair to Mr. McDonald. And if that’s their intent, I would like

to know why the State has waited until the last minute to do this. Up until

last week, when I discussed this case with Mr. Allman, we discussed the

child appearing in court, testifying, having to clear the courtroom for the

testimony. And suddenly now, on the day of trial, suddenly there’s this

concern of trauma? I’m sorry, Your Honor, but, you know, I’m – I’m all for

trying to fight a case as well as anybody else, but I think this is just – this

is last minute and, excuse the expression, but I feel like I’m being

Case No. 4:10cv428-RH/CAS
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blindsided here. I don’t feel that this is fair, and I don’t think this is gonna

give Mr. McDonald an opportunity to be heard. 

I understand that the Supreme Court has found that interviewing a

child – or testifying by closed circuit TV does not prohibit or does not

violate his confrontation, but Your Honor, putting this child on TV is gonna

limit my ability to cross examine her because she’s not gonna be up on

the stand. It’s gonna be – eliminate my – you know, the demeanor or the

– of what the jury’s gonna see of this child on the stand.

And what if the child comes into this courtroom and has no reaction

to Mr. McDonald at all? Well, I think that’s a – that’s something the jury

should be able to see as well.

I just think that this is a terrible mischaracter [sic] of procedure

here, that here on the ninth hour we’re suddenly being hit with Dr. Knobbe

as an expert coming in and testifying here concerning trauma. Whether

it’s in camera or not, Your Honor, I think it’s unfair. And at the very least,

if that’s what they intend to do, then we would seek to get our own expert

and have this child examined by that expert. I mean, I think we’re entitled

to that. Or to get his report or to see what he’s get [sic] basing it on. 

Id. at 5-7. The trial judge asked the prosecutor to respond and the following transpired:

MR. ALLMAN: Judge, Dr. Knobbe is not gonna testify in the case-in-chief. 

The only thing he’s going to do is offer some testimony about his opinion

as to whether the child would suffer from the emotional and mental harm

that’s talked about in the statute. I don’t even know what Dr. Knobbe’s

gonna say. He’s back there talking to the child right now. He may come

in here and say that she would be fine, in which case we wouldn’t have

the finding to be made by the Court. If he says that the child would suffer

the harm, then obviously we would seek to go for the closed circuit

camera testimony.

Now, there’s been a concern all along – This is not the child’s

counselor, so to speak. I mean, this is not something that we’re just doing

at the last minute to see if there’s any trauma. The issue for Dr. Knobbe,

and the issue before the Court, is whether the child being face-to-face

with the defendant in this courtroom, here today, is going to cause her the

substantial likelihood of emotional or mental harm. That’s what Dr.

Knobbe is here to talk about.

Case No. 4:10cv428-RH/CAS
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I think it would be fair for the defense to have a chance to voir dire

Dr. Knobbe and to state their objections for the record, but he’s not going

to testify in the case-in-chief. I would expect his testimony to be fairly

directly to that one point.

MR. EAGEN [defense counsel]: Well, Your Honor, only one other point. 

In the very initial states of this case, when this child was interviewed by

Kimberly Ellis and then was seen by the Department of Children and

Families case workers and then Faye Gardner did an evaluation of this

child to determine whether or not any dependency issues were arising,

her recommendations were, at that time, that since the – since Mr.

McDonald was not gonna be around the child, there was gonna be no

contact at that time, that, you know, they didn’t see a dependency issue. 

But her recommendation specifically stated that the child should receive

counseling as needed.

Now, if there was – if there was trauma, then this child should have

been seeing a counselor all this while, and we would have a counselor

that would come in here and could adequately, after seeing the child for a

period of months, give an opinion. And we would have been – If we had

known about that prior to today, then we would have been prepared to do

that.

Now, if – Also, if Mr. Allman had made me aware that this was his

intention, instead of that the child was gonna testify, then I probably would

have scheduled the child for a deposition and done a video deposition to

allow me to actually confront the child person-to-person. But none of that

was done, and this is just – I just –

THE COURT: Well, let me interrupt you a minute. This statute – I don’t

think anybody is being sandbagged here, because there is no time

constraints in the statute. As a matter of fact, it gives the Court the option

of saying, “We’re gonna do this closed circuit TV,” does it not? Yes, it

does.

MR. EAGEN: Yes, it does. Absolutely. You make the finding, that’s

correct.

THE COURT: Now, what defense counsel is saying is we don’t want the

Judge or the Court to have any help in making that determination. And if

that’s what you want, fine, I will talk to the child myself and make that

determination. Now, as far as video depositions and confrontation, I

believe, counsel, in your argument you already agreed that the Supreme

Case No. 4:10cv428-RH/CAS
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Court has ruled that the right of confrontation is not abridged through

television testimony.

MR. EAGEN: That’s true, I do.

THE COURT: Right.

MR. EAGEN: I do. I understand that.

THE COURT: So you can’t say: Well, we can’t have it now, but boy we

should have had it before. No. Now, Dr. Knobbe is – I don’t know what

he’s gonna say, I don’t think anyone knows what he’s gonna say. I do not

– If he was testifying in the case-in-chief, that would be a different story,

but he is not. He’s testifying on a very narrow issue, whether or not the

child would be traumatized or have any – suffer in any way from

appearing in the courtroom to testify in the presence of Mr. McDonald. 

That’s the sole issue, correct?

MR. EAGEN: That is.

MR. ALLMAN: Yes, sir.

THE COURT: And we’re gonna hear from Dr. Knobbe on that point, Mr.

Eagen.

MR. EAGEN: Oh, I understand that. I’m voicing my objection.

THE COURT: Your objection is noted.

Id. at 8-11. 

After Dr. Knobbe finished his examination of T.W., he testified, outside the

presence of the jury, concerning the State’s motion to have T.W. testify via closed

circuit camera. Id. at 17-35. He testified that his training is as a clinical child

psychologist, a “substantial amount” of his work is with the CPT or the Department of

Children and Families, and the rest of his practice is therapy with children having

emotional difficulties. Id. at 18. Dr. Knobbe indicated he gets referred to “as kind of the

Case No. 4:10cv428-RH/CAS
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‘listening doctor,’ or the ‘worry doctor,’ is what kids call [him].” Id. Defense counsel

stipulated to Dr. Knobbe’s expertise. Id. at 19. 

Dr. Knobbe testified he was contacted the day before, by Faye Gardner with the

CPT and, in response, he had come to the prosecutor’s office that morning to meet with

T.W. Id. He met with T.W. for “[a]pproximately an hour” and he believed that time was

sufficient for him to make a determination within a reasonable degree of psychological

certainty, regarding whether T.W.’s appearance in court, in a face-to-face confrontation

with McDonald, would cause a substantial likelihood of mental or emotional damage. 

Id. at 20. Dr. Knobbe described his interview methodology:

Well, first we took a little time to get to know each other. She picked out

some books for me to read, and we watched a little bit of a Disney tape so

she could just get comfortable with me. And then I explained my reason

for wanting to talk to her. The rest of the interview involved drawing some

– basically faces that show different basic mood states, and then just

question and answer, asking her questions about her understanding about

what she would be called upon to do and how she feels about it and how

she would feel in different situations. I also addressed the issue about

whether she understands the difference between telling the truth and

telling a lie, to make sure that she understands, you know, that, the

concept and the importance of being truthful.

Id. at 20-21. Dr. Knobbe testified that “it’s clear that she understands that, what it is to

be truthful and that it’s important to be truthful.” Id. at 21. His testimony continued:

Q All right. And based on your interview, then, with [T.W.], what is your

opinion about whether she would suffer a substantial likelihood of at least

moderate mental or emotion damage if confronted – or I should say

forced to confront the defendant in this case, face-to-face in open court?

A I believe that she would.

Q Can you tell us why?

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A Several – Several different kinds of information. One was the fact that

she was very, very sensitive to the presence or absence of her mother at

all times during our interview. She was checking to see if her mother was

in the same room, she was closely listening to whether her mother was

speaking about her or not. At one point her mother left the room and she

became very quiet and said she wanted her mommy. At the end of our

interview then, when I left to come over here and her mother was still

absent, she became quite tearful and said she wanted her mother. So

what that indicates to me in a child this age is an increase in what we call

attachment related behavior and feelings of insecurity in the absence of

her mother, so she’s already in a, in essence, a heightened emotional

state and a state of insecurity to start with.

In addition, she is very reluctant to talk about, very much tries to

avoid talking about feelings about coming to talk this morning, but in fact

any negative feelings in generally, she generally holds to – to – she

presented to me like a child who’s putting up a very brave front. When I

interview her about different kinds of feelings, what makes you happy,

what makes you sad and the like, the only feelings that she would really

admit to are happy feelings, although she did state that if she were to see

the – well, Michael, who she referred to as Michael, who I believe is the

defendant, that she would feel anger, she would feel mad. “Mad” was her

word.

Q All right. Well, let me ask you: Does the fact that [T.W.] is about five

years old have any factor in the calculus about whether she would suffer

the damage that we’re talking about?

A It has a significant role to play. I was thinking about that as I was

walking over here, and just mulling over and making sense of the

interview we’d had. And I recall from having reviewed several chapters on

this subject last night, that preschools tend to process – they make sense

of situations based on their immediate experience of it. They don’t really

– they really can’t think abstractly or they can’t think about situations they

haven’t experienced. It’s very hard for them to understand the roles of

different individuals in a courtroom setting. So while she may know that

there are different people who have different roles such as a Judge,

lawyers, court reporters, juries, and the like, it’s hard for her to really

understand their roles and she may process and think of this situation in

terms of what she’s already experienced.

Now, I haven’t – I wasn’t able in the time I had to establish sort of

what’s her frame of reference, whether it’s something like having to go to

Case No. 4:10cv428-RH/CAS
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the principal’s office or something like that, but it’s clear that she has –

that this particular child has a limited understanding of what is everybody’s

role and what would be her role and what she would have to do.

Q And in addition to the anger that she talked about, did she express any

feelings of fear or trepidation or being afraid of Mr. McDonald if she had to

see him face-to-face?

A She did not.

Q Okay. Now, what about the fact that this is a family situation? The

defendant in this case is actually the husband of Ms. [T.W.]’s older sister. 

Does that have any affect on the likelihood that she would suffer mental or

emotional harm?

A I wasn’t able to discuss specifically with her that issue, however it is

generally acknowledged in the literature that sexual abuse which takes

place within a family setting, and having to report and answer questions,

testify to such, is generally more stressful for children than having to

report such abuse when it takes place at the hands of strangers.

Q Did she – Did you have a chance to discuss with her any feelings that

she has of concern that her testimony is going to break up her family or

somehow cause any kind of problems within the family unit?

A No. I did attempt to start questioning along those lines, but she

basically became quiet and went back to her drawing at that point. She

generally avoided that topic. 

. . . .

Q . . . . Describe for us the way that [T.W.] behaved whenever you

approached the issue of having to confront Mr. McDonald here in the

courtroom.

A Oh, she would stand very straight, her expression, her facial

expressions became much more flat, or as you would say sort of difficult

to read, and she became very intent on doing – doing something. Either

she was printing letters on a piece of paper, or at one point she removed

the video that was in the – that was playing in the TV set and switched to

another video.

Q Okay.

Case No. 4:10cv428-RH/CAS
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A In essence, just about anything other than responding to the question.

Q And if confronted, then, in a face-to-face situation with her accuser,

would you expect that to be a less intensive reaction or a more intensive

reaction?

A I would expect a more intensive reaction, again along those lines of

trying to avoid having to think about, deal with, respond to the situation.

Q And just to wrap up, after your hour-long, or approximately hour-long

meeting with her, it’s your expert opinion, to a reasonable degree of

psychological certainty, that [T.W.] would suffer at least a substantial

likelihood of mental or emotional harm, at least moderate mental or

emotional harm if she were forced to confront Mr. McDonald here in open

court?

A Yes.

Id. at 26. On cross, defense counsel asked Dr. Knobbe whether he had reviewed the

CPT taped interview with Kimberly Ellis, and Dr. Knobbe indicated he had not done that

– his opinion was “strictly based on the time I spent with [T.W.] this morning.” Id. 

Defense counsel questioned Dr. Knobbe about whether he knew T.W. “has basically

been raised by the mother, and the father is not in the house,” and Dr. Knobbe

responded, “I really have not – like I say, I have not reviewed the case, any of those

sets of demographics – . . . you know, to establish, for example, what was her prior

relationship with her mother who’s reared her, or the like.” Id. at 27-28. Dr. Knobbe

indicated that it is not “abnormal” for a child to be more closely tied to a single parent

and it is “possible” that the absence of the child from that parent would increase

separation anxiety. Id. at 28. Defense counsel further questioned Dr. Knobbe about

trauma T.W. might experience:

Case No. 4:10cv428-RH/CAS
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Q Okay. And part of the concerns you raised were the – her inability to be

– you know, the courtroom setting, and being able to understand the

position of the Judge and the jury, et cetera, correct? That would be part

of the trauma?

A Well, it – Yeah, what I was trying to convey is that it is important, in

interpreting the responses she gave me, to understand that she is, you

know, a preschooler, a kindergarten-aged child, and it is difficult for them

to understand the roles of particular officials of the court. For example,

she might not understand that it would be sufficient for, if she had

something that she needed to convey to the defendant, that that could be

conveyed through another person, such as the Judge. She might assume

that for it to – for what she has to say to count, that she would have to

state that directly to that person.

. . . .

Q Okay. Now, as I understood your testimony, your – your – what you

stated was that it was your opinion – or that she may exhibit anger at the

– at Mr. McDonald?

A That’s what she reported to me, yes.

Q Or be “mad” at him, and express that?

A Yes.

Q Okay. But in answering the questions of – from the State, you did not

specifically have an opinion, or she did not state anything concerning, her

fear?

A That’s correct, yes. No, she did not state that she would feel fearful.

Q No fear, just anger?

A Right, just anger.

Q Okay. And you are also aware that if it is done by closed circuit, this is

not – Is it my understanding from your testimony that your opinion is the

testifying itself would be a traumatic situation for this child?

A I believe that, yes, that it would be.

Case No. 4:10cv428-RH/CAS
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Q Because – And some of the things that the State asked you about

concerning the, you know, the relationship in the family, et cetera, and all

those things, okay, those traumatic aspects of the testifying itself would

not be eliminated by testifying, whether it’s closed circuit or in the

courtroom; is that correct?

A That’s correct, yes.

Q So the mere basis of – The mere fact of testifying itself is a traumatic

circumstance?

A Yes.

Q Okay. And so if I can center the focus, if I’m understanding the

concerns that you’re raising, is that when she’s present in the courtroom,

she will experience some separation anxiety of not being with her mother,

correct?

A If her mother is not able to be with her, yes, that is correct.

Q Right. And we would assume also that if she’s testifying by closed

circuit, her mother would not be present either?

A I assume that’s for the Judge to determine.

Q Okay, but let’s – Okay, but – So there’s a separation anxiety?

A Yes.

Q Then there’s the concerns as to the aspects of the courtroom itself?

A Yes.

Q Which can be a scary place for anybody, correct?

A Yes. Frequently it is for me, yes.

Q I understand. And then, lastly, your opinion is that she may exhibit

being mad at Mr. McDonald?

A Yes, as she reports it.

Case No. 4:10cv428-RH/CAS
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Q And so let me center on this aspect of being mad, okay? How is that

traumatic?

A In itself?

Q Yeah.

A Being angry?

Q Yes.

A Oh. It can, in itself, it can be traumatic in – if a child is living in an

environment in which she believes it’s not acceptable to express a lot of

negative emotion – 

Q All right, but you don’t know that –

A – whether or not that is fear, anger, sadness, or the like.

Q But you have no knowledge of that at all –

A No.

Q – because you don’t know the family dynamics?

A That is correct.

Q Assuming she’s being raised in a normal family – well, quote, unquote,

“normal” where people do get angry, it would necessarily be traumatic,

would it?

A It may or may not be.

Q But you can’t voice an opinion on that, because you don’t know the

dynamics?

A That’s correct.

. . . .

Q Going along with this anger and this madness, were you able to

ascertain anything as the source of the anger, you know, for example, the

source of the anger other than the possibility of the allegations in this

Case No. 4:10cv428-RH/CAS
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case? For example, the fact that Mr. McDonald is no longer in the home,

neither is her sister or her cousins present in the home?

A Actually, I believe I was.

Q And?

A At the time that I was asking her, you know, how she would be – how

she would feel if she saw the defendant again, this directly followed our

discussion about whether if she could have a choice that she could talk to

the Judge in front of the defendant or in another way, and she

spontaneously stated to me that she had – she had tried to talk to the

defendant and – at some point, and said, “Let’s go, I don’t want to play,”

that that he didn’t listen.

I asked her, then, what difference would it make, then, to – or why

would she – why was she bringing this up at this time, how did this

connect with talking in front of the Judge, and she explained to me that if

the Judge was there, that perhaps the Judge would be able to get Michael

to listen to her and believe her when she said, “No,” she didn’t want to do

the things he wanted her to do. And I believe that’s where some of the

anger comes from, this feeling that she hasn’t been listened to.

Q But going back to what I was saying, though, did she talk at all about

sher sister . . . and her – I believe it would be her cousins, who were living

in the home at the time and who were no longer there since this incident

occurred?

A No, we did not discuss those relationships, other than to establish who

was who.

Q Okay. So you can’t ascertain, or you don’t have any opinion as to

whether some of this anger could also be based on the separation that

she’s had now from her sister and the other family members?

A No. Basically, the time I had available didn’t allow that.

Id. at 29-34. On redirect, the prosecutor asked if T.W.’s anger was the sole basis for

Dr. Knobbe’s opinion:

Q The fact that Miss [T.W.] expressed to you that she would feel anger

toward the defendant, while that may or may not result in emotional or

Case No. 4:10cv428-RH/CAS
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mental harm to her, that fact alone isn’t what you’re basing your opinion

on?

A No, it is not. 

Q It’s the totality of what you talked about here today?

A Yes, the totality of what I talked about. That in particular would

perhaps cause me some concern about her ability to provide the Court

with complete information. Just about any person, when they’re angry,

has a little bit more difficult time searching their memory and giving

complete information, but that’s separate from – that’s not the totality of

what I based my opinion on. It’s based on all the information I have.

Id. at 35. The prosecutor argued:

I would just state that the testimony of Dr. Knobbe does provide the

evidence that there is a substantial likelihood that Miss [T.W.], who is the

victim in this case, will suffer at least a moderate emotional or mental

harm due to the presence of the defendant if the child is required to testify

in open court. I would ask the Court to make specific findings as to that

and allow the closed circuit camera testimony of the victim.

Id. at 35-36. In response, defense counsel argued:

Your Honor, we renew our objection, based on the opinion of Dr.

Knobbe. As I understand it, there were three factors: The overall

courtroom circumstances, which under the Lewis decision, should not –

cannot be the basis for the exclusion, or the allowing of the closed circuit

television; the separation anxiety from her mother, which, as Dr. Knobbe

stated, unless the mother is present where she’s being filmed with the

closed circuit TV, there’s going to be separation anxiety either way, and I

don’t think that should be considered as a factor here; which leads us with

the sole factor that he says that she could be mad or could experience or

express some anger towards Mr. McDonald. He specifically said she

didn’t express any fear or anxiety in coming here, as far as Mr. McDonald,

but she did say – he did say that she might express some anger. Well, I

don’t think anger relates to trauma. And if she’s gonna be angry, then,

you know, I don’t know where that – I don’t know how that relates to

trauma in this particular case, especially in the Lewis decision. I don’t

think it reasonably raises to the level of moderate or, you know, trauma. 

Anger is not trauma. And if the victim is angry, the victim is angry, and we

don’t know where that anger’s coming from. Dr. Knobbe himself says he

Case No. 4:10cv428-RH/CAS
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only had an hour. He didn’t get to understand – He didn’t even know of

the family dynamics as to the father, there’s no father in the home, if this

could be contributing to the separation anxiety. He didn’t go into the sister

and the niece and nephew who are no longer – are separated due to this

event. He did not view the videotape.

I don’t think that there’s a sufficient finding that you – or that there

should – that you can find a substantial finding that this child would be

traumatized by being in this courtroom, based solely on – or based on this

opinion. If the child is going to experience anger, I don’t think that’s

sufficient under the case law.

Id. at 36-37. The prosecutor had nothing further. Id. at 37. The trial judge made his

ruling, in its entirety:

THE COURT: All right. Well, we’ve got here a five year old child. She’s a

normal five year old child, but she is, nevertheless, a five year old child. 

That is a factor that must be considered by the Court and has been

considered by the Court, together with the family relationships that exist in

this entire case. I must factor in the child’s limited understanding of the

court and the nature of the testimony that is to be elicited from her. With

that, I’m considering the observations that this Court did make of the child

when it reviewed the CPT tape, as well as the verbal response of the child

during the interview.

I find that there is a substantial likelihood that she would suffer at

least moderate emotional or mental harm due to – if she’s required to

testify in the presence of the defendant in open court; therefore, I’m

granting the motion.

MR. EAGEN: Well, Your Honor, our objection is noted for the record, I

assume, as far as –

THE COURT: So noted.

Id. at 37-38. Defense counsel then inquired about the logistics of the child testifying. 

Id. at 38. The prosecutor indicated he planned to have the video camera hooked up to

the television that is in the courtroom; the jury would remain seated in the jury box in the

courtroom; the defendant would remain seated at counsel table in the courtroom; the

Case No. 4:10cv428-RH/CAS
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court reporter would remain in the courtroom, taking the testimony off the video camera;

and the judge, the prosecutor, and defense counsel would be in the jury room with T.W. 

Id. at 38-39. The defendant could communicate with his attorney via telephone. Id. at

39. Defense counsel requested, and was allowed, to have his paralegal in the jury

room. Id. The court also added that one of the bailiffs would remain in the courtroom in

the event any breakdown in communication occurred with the cell phone McDonald

would use to communicate with defense counsel. Id. at 39-40. Defense counsel

indicated, “That would be fine, Your Honor. Under though [sic] provisos, we can

proceed.” Id. at 40. As indicated above, the trial court’s ruling was affirmed on appeal

without an opinion.

From the detailed review of the record, the state court’s adjudication of the claim

did not (1) result in a decision that was contrary to, or involved an unreasonable

application of, clearly established U.S. Supreme Court precedent; or (2) result 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). In Maryland v.

Craig, the applicable established U.S. Supreme Court precedent cited by McDonald

and Respondent, the Court considered a Maryland procedure similar to that done in this

case and held: 

[I]f the State makes an adequate showing of necessity, the state interest

in protecting child witnesses from the trauma of testifying in a child abuse

case is sufficiently important to justify the use of a special procedure that

permits a child witness in such cases to testify at trial against a defendant

in the absence of face-to-face confrontation with the defendant.

497 U.S. at 855. The Court explained the findings the trial court must make:

Case No. 4:10cv428-RH/CAS
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The requisite finding of necessity must of course be a case-specific

one: The trial court must [1] hear evidence and determine whether the use

of the one-way closed circuit television procedure is necessary to protect

the welfare of the particular child witness who seeks to testify. The trial

court must also [2] find that the child witness would be traumatized, not by

the courtroom generally, but by the presence of the defendant. Denial of

face-to-face confrontation is not needed to further the state interest in

protecting the child witness from trauma unless it is the presence of the

defendant that causes the trauma. In other words, if the state interest

were merely the interest in protecting child witnesses from courtroom

trauma generally, denial of face-to-face confrontation would be

unnecessary because the child could be permitted to testify in less

intimidating surroundings, albeit with the defendant present. Finally, the

trial court must [3] find that the emotional distress suffered by the child

witness in the presence of the defendant is more than de minimis, i.e.,

more than “mere nervousness or excitement or some reluctance to

testify.”

Id. at 855-56 (citations omitted). The Court indicated that, in the case then before it, it

“need not decide the minimum showing of emotional trauma required for use of the

special procedure, however, because the Maryland statute, which requires a

determination that the child witness will suffer ‘serious emotional distress such that the

child cannot reasonable communicate,’ § 9-102(a)(1)(ii), clearly suffices to meet

constitutional standards.” Id. at 856. The Court concluded: 

[W]here necessary to protect a child witness from trauma that would be

caused by testifying in the physical presence of the defendant, at least

where such trauma would impair the child’s ability to communicate, the

Confrontation Clause does not prohibit use of a procedure that, despite

the absence of face-to-face confrontation, ensures the reliability of the

evidence by subjecting it to rigorous adversarial testing and thereby

preserves the essence of effective confrontation. 

Id. at 857. The Court further concluded:

Because there is no dispute that the child witnesses in this case testified

under oath, were subject to full cross-examination, and were able to be

observed by the judge, jury, and defendant as they testified, we conclude

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that, to the extent that a proper finding of necessity has been made, the

admission of such testimony would be consonant with the Confrontation

Clause.

Id. Finally, the Court considered a portion of the opinion of the Maryland Court of

Appeals which had relied on Coy v. Iowa, 487 U.S. 1012 (1988), to impose two other

requirements: (1) that the Maryland statute “‘cannot be invoked unless the child witness

initially is questioned (either in or outside the courtroom) in the defendant’s presence,’”

and (2) before using the one-way closed circuit television procedure, the trial judge

must “determine whether a child would suffer ‘severe emotional distress’ if he or she

were to testify by a two-way closed circuit television.” Id. at 858 (citations omitted). The

Court found these requirements not necessary:

The Court of Appeals appears to have rested its conclusion at least

in part on the trial court’s failure to observe the children’s behavior in the

defendant’s presence and its failure to explore less restrictive alternatives

to the use of the one-way closed circuit television procedure. Although we

think such evidentiary requirements could strengthen the grounds for use

of protective measures, we decline to establish, as a matter of federal

constitutional law, any such categorical evidentiary prerequisites for use of

the one-way television procedure. The trial court in this case, for

example, could well have found, on the basis of the expert testimony

before it, that testimony by the child witnesses in the courtroom in the

defendant’s presence “will result in [each] child suffering serious

emotional distress such that the child cannot reasonably communicate,”

§ 9-102(a)(1)(ii). So long as a trial court makes such a case-specific

finding of necessity, the Confrontation Clause does not prohibit a State

from using a one-way closed circuit television procedure for the receipt of

testimony by a child witness in a child abuse case.

Id. at 860 (citations omitted).

Although not cited by either McDonald or Respondent, Cumbie v. Singletary, 991

F.2d 715 (11th Cir. 1993), involves circumstances similar to this case. In Cumbie, the

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defendant was charged with capital sexual battery and, before his trial, the prosecutor

sought to have the five-year-old victim, Cathy, testify by one-way closed circuit

television. Cumbie, 991 F.2d at 717. 

The court held a brief evidentiary hearing on the motion during which a

mental health counselor who had worked with the child was a witness. 

The counselor spoke generally about Cathy’s personality and reaction to

her alleged abuse and the events that followed. (Tr. 81-84) When asked

if she thought Cathy would suffer at least moderate emotional trauma or

harm if required to testify in open court – the approximate language of Fla.

Stat. § 92.54(1) (1987) – the counselor answered in the affirmative. No

other evidence was presented.

Id. at 717-18 (footnotes omitted). The state trial judge granted the motion finding, “I will

allow the child to testify by closed circuit TV because I find that there is a likelihood that

she would suffer at least moderate emotional or mental harm from testifying in open

court.” Id. at 719. After the jury convicted Cumbie of a lesser included offense, he

appealed to the First DCA, which affirmed his conviction but remanded for

resentencing, discussing the merits of only the sentencing issue and stating it found “no

merit to the remaining issues.” Id.; Cumbie v. State, 539 So. 2d 538 (Fla. 1st DCA

1989). In his federal habeas corpus petition, Cumbie argued “as he did on direct

appeal, that his right to confront adverse witnesses was infringed when Cathy was

permitted to testify by way of the one-way closed circuit television outside his

presence.” Cumbie, 991 F.2d at 718. Because the U.S. Supreme Court decided Craig

while Cumbie’s habeas case was pending, the federal magistrate judge asked the

parties to address the impact of Craig on the case. Cumbie, 991 F.2d at 719. The

magistrate ultimately concluded Craig applied to Cumbie’s case; the state trial court

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erred because it did not make sufficient findings to overcome Cumbie’s right to face-toface confrontation as required by Craig; even if Craig did not apply, the trial court’s

findings did not satisfy Coy v. Iowa, which was decided after Cumbie’s trial but before

his conviction was final; and, even though the state trial court committed constitutional

error, that error was harmless; therefore, Cumbie was not entitled to habeas corpus

relief. Cumbie, 991 F.2d at 719. 

On appeal, the Eleventh Circuit explained that “[t]he Sixth Amendment to the

federal constitution guarantees that ‘In all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses against him.’” Id. at 720. Further,

the Eleventh Circuit explained that, in Coy, the Court held that “the ‘irreducible literal

meaning’ of this clause guaranteed a defendant face-to-face confrontation with his

accusers, even in child abuse cases.’” 991 F.2d at 720. The Coy case concerned an

Iowa statute that allowed the trial court to place “a screen between the defendant and

the accusing child abuse victim/witnesses, based on a statutory presumption that the

screen was necessary to protect the children from the traumatic effect of testifying in

court,” and the Supreme Court found that procedure violated the Sixth Amendment right

to face-to-face confrontation, noting that “the screen ‘was specifically designed to

enable the complaining witnesses to avoid viewing appellant as they gave their

testimony,’” although appellant could “dimly observe the witnesses.” Id. at 720-21. 

In applying Coy, the Cumbie court analyzed the Florida statute involved in this

case, section 92.54, providing for closed circuit televised testimony for child victims in

certain cases. Id. at 721. The court indicated that the first part of the statute, in

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subsections (1) through (3), “contemplates that the defendant and child may be in the

same room during the child’s testimony” and noted that “[o]f course, when the

defendant and the child are in the same room during the child’s testimony, the

defendant’s right to face-to-face confrontation is not a concern.” Id. The second part of

the statute, however, allows the court to require the defendant to remain in the

courtroom and watch the child testify on the television. Id.; see § 92.54(4), Fla. Stat.

(2003). As the Eleventh Circuit observed, “[t]here is no indication in the statute as to

when the defendant must remain in the courtroom or what separate judicial findings are

a necessary prerequisite to such action.” Cumbie, 991 F.2d at 721. The court further

observed:

Clearly, section 92.54(4) affects the defendant’s confrontation

rights. The procedure appears “specifically designed to enable the

complaining witnesses to avoid viewing [the defendant] as they [give] their

testimony.” Coy, 487 U.S. at 1020 . . . . When the defendant is forced to

sit in the courtroom and watch a child testify against him via one-way

closed circuit television, “[i]t is difficult to imagine a more obvious or

damaging violation of the defendant’s right to a face-to-face encounter.” 

Id.

The question, then, is whether the state trial court in this case

made sufficient individualized findings about the possibility of harm to

Cathy to reliably conclude that it was necessary for her to testify outside of

Cumbie’s presence and overcome the “irreducible literal meaning” of the

Confrontation Clause.

 

Id. at 721-22. 

The Eleventh Circuit agreed with the district court that the state trial court had

failed to make sufficient findings “to defeat Cumbie’s right to a face-to-face encounter

as it was understood after Coy” and observed that “[n]o one at trial even appears to

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have considered Cumbie’s Confrontation Clause rights.” Id. at 722. The court noted

that the State’s motion “did not mention the necessity, nor even request, that Cathy

testify outside the presence of the defendant.” Id. The Eleventh Circuit explained,

“There is no reference in the record to the necessity or propriety of keeping Cumbie

from the room in which Cathy testified, or the harm that would be avoided by allowing

Cathy to testify in that manner.” Id. at 719. In addition,

There was no discussion whatsoever during the brief hearing on the

state’s motion about whether there would be a danger of significant

traumatization to Cathy if Cumbie stayed in the courtroom during her

testimony. Cathy’s counselor did not mention anything about Cathy’s

feelings toward Cumbie or whether Cumbie’s presence in the room with

Cathy might make it more or less likely that she would become upset or

suffer trauma. 

Id. at 722. The court determined the trial court’s mere recitation of the “magic words,”

without the inquiry and case-specific findings required by Coy, did not satisfy

constitutional standards:

Even if we assume that a court after Coy, but before Craig, would

not have known that the specific inquiry and findings necessary to

overcome the defendant’s right to face-to-face confrontation must actually

be relevant to that right, we are still convinced that the trial court’s inquiry

and findings were constitutionally deficient in this instance. . . .

We simply cannot find any support in the record for the proposition

that the state demonstrated, or the trial court properly articulated, any

reason to justify Cathy’s separation from the defendant during her

testimony. There is nothing to indicate that she was afraid of Cumbie or

that testifying by closed circuit television would enhance the protection

she needed. Rather, the inquiry in this case was little more than the

legislative presumption of harm rejected by the Court in Coy. The motion,

hearing, and findings in this case appear from the record to have been

merely a rote exercise to conform with the formality of section 92.54,

although we are not convinced the court’s findings were even sufficient to

satisfy the statute. To read the more relaxed standard of Justice

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O’Connor’s concurrence in Coy and its requirement of a “case-specific

finding of necessity,” Id., compels the conclusion that a mere recitation of

the “magic words” is not enough to override the defendant’s constitutional

rights. There still must be a “close examination of ‘competing interests’”

that warrants subordinating the constitutional preference for face-to-face

confrontation. Coy, 487 U.S. at 1024 . . . . No such examination was

conducted in this case. 

Id. at 722-23 (some citations omitted). The court noted that Justice O’Connor, in her

concurring opinion in Coy, had cited the Florida Statute, section 92.54(4), “as a statute

that might be adequate to satisfy constitutional scrutiny” but indicated “that dicta might

have lulled some into a false sense of security.” Id. at 723. “Most obviously, section

92.54(4), on its face, does not require any showing whatsoever to justify keeping the

defendant in the courtroom while the child testifies by television from another room.” Id. 

Further, “even if the statute did comply with Justice O’Connor’s understanding of

constitutional acceptability, the trial court must still sufficiently examine and apply the

statute to protect the defendant’s rights” as “[a] statute that is facially constitutional does

not always guarantee that a particular defendant’s rights are adequately protected by

it.” Id. In Cumbie, where the trial court merely recited the operative statutory language,

the court found such “does not strike us as the sort of ‘specific findings of fact, on the

record, as to the basis for its ruling’ contemplated by the statute.” Id. The court found

the trial court’s “mere recitation of the statutory language” did not comply with section

92.54(5), which requires the trial court to make specific findings of fact, and even if it did

fulfill the statute’s requirements, “the procedure did not in this case adhere to the

constitution.” Id. The court found, “[W]e do not believe that the state trial court’s factual

finding that Cathy would be harmed by testifying in court was sufficiently developed at

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the hearing or that it was fairly supported by the scant record.” Id. Therefore, that

determination was not entitled to a presumption of correctness as “[t]he record simply

does not sustain the assertion that Cathy would have suffered such a degree of trauma

as to make it necessary for her to testify outside Cumbie’s presence.” Id. at 723-24. 

The court found the state court proceeding “did not comport to the constitutional

standard mandated by Coy” and, further, the error was not harmless in that case. Id. at

724. 

In this case, similar to Maryland v. Craig and Cumbie v. Singletary, the child

victim, T.W., testified by closed circuit television, under oath, was subject to full crossexamination, and was observed as she testified, by the judge in person and the jury and

defendant on the video camera in the courtroom. Both the prosecutor and defense

counsel, as well as defense counsel’s paralegal, were also in the room with T.W. 

Before allowing T.W.’s testimony in this fashion, in compliance with Craig’s first

requirement, the trial court heard testimony from Dr. Knobbe, reviewed the CPT tape,

and determined the use of the one-way closed circuit television procedure was

necessary to protect the welfare of T.W., given T.W.’s age, family relationships, limited

understanding of the court, and the nature of the testimony she would give. See Doc.

25 Ex. B at 37-38.

As to Craig’s second requirement, the state trial court found, at the conclusion of

the motion hearing, that “there is a substantial likelihood that [T.W.] would suffer at

least moderate emotional or mental harm due to – if she’s required to testify in the

presence of the defendant in open court.” Doc. 25 Ex. B at 38 (emphasis added). This

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finding thus specifically references the presence of McDonald, not just the courtroom

generally, in connection with the substantial likelihood that T.W. would suffer harm. 

McDonald cites to Dr. Knobbe’s testimony, quoted above, that T.W. was not afraid of

McDonald, for his argument that the record does not sufficiently support the state trial

court’s finding that T.W. would suffer harm if required to testify in McDonald’s presence. 

See Doc. 1 at 16; Doc. 25 Ex. B at 23 (prosecutor asked whether “in addition to the

anger that she talked about, did she express any feelings of fear or trepidation or being

afraid of Mr. McDonald if she had to see him face-to-face?” and Dr. Knobbe answered,

“She did not”). Other portions of Dr. Knobbe’s testimony, however, do support the state

trial court’s conclusion regarding the substantial likelihood that T.W. would suffer harm

if required to testify in McDonald’s presence. In particular, Dr. Knobbe testified that he

met with T.W. for “[a]pproximately an hour” and he believed that time was sufficient for

him to make a determination within a reasonable degree of psychological certainty,

regarding whether T.W.’s appearance in court, in a face-to-face confrontation with

McDonald, would cause a substantial likelihood of mental or emotional damage. Id.

Doc. 25 Ex. B at 20. Dr. Knobbe discussed T.W.’s age, her close relationship with her

mother, and her limited understanding of the court proceedings. Id. at 21-23; see id. at

27-29 (testimony of Dr. Knobbe on cross). In addition, Dr. Knobbe testified regarding

T.W.’s behavior when asked about testifying in McDonald’s presence in the courtroom:

Q . . . . Describe for us the way that [T.W.] behaved whenever you

approached the issue of having to confront Mr. McDonald here in the

courtroom.

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A Oh, she would stand very straight, her expression, her facial

expressions became much more flat, or as you would say sort of difficult

to read, and she became very intent on doing – doing something. Either

she was printing letters on a piece of paper, or at one point she removed

the video that was in the – that was playing in the TV set and switched to

another video.

Q Okay.

A In essence, just about anything other than responding to the question.

Q And if confronted, then, in a face-to-face situation with her accuser,

would you expect that to be a less intensive reaction or a more intensive

reaction?

A I would expect a more intensive reaction, again along those lines of

trying to avoid having to think about, deal with, respond to the situation.

Q And just to wrap up, after your hour-long, or approximately hour-long

meeting with her, it’s your expert opinion, to a reasonable degree of

psychological certainty, that [T.W.] would suffer at least a substantial

likelihood of mental or emotional harm, at least moderate mental or

emotional harm if she were forced to confront Mr. McDonald here in open

court?

A Yes.

Id. at 26. Dr. Knobbe testified that his opinion was based, not only on T.W.’s statement

that she would feel anger toward McDonald, but on the totality of his testimony, all the

information he had, as well as his “concern about her ability to provide the Court with

complete information.” Id. at 35. This testimony supports the trial court’s findings,

including that “there is a substantial likelihood that [T.W.] would suffer at least moderate

emotional or mental harm” if required to testify in McDonald’s presence. The trial

court’s finding thus complies with Craig’s second requirement. See Craig, 497 U.S. at

860 (“The trial court in this case, for example, could well have found, on the basis of the

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expert testimony before it, that testimony by the child witnesses in the courtroom in the

defendant’s presence ‘will result in [each] child suffering serious emotional distress

such that the child cannot reasonably communicate,’” and “[s]o long as a trial court

makes such a case-specific finding of necessity, the Confrontation Clause does not

prohibit a State from using a one-way closed circuit television procedure for the receipt

of testimony by a child witness in a child abuse case.”); Lomholt v. Iowa, 327 F.3d 748,

754-55 (8th Cir. 2003) (affirming denial of habeas relief and explaining, among other

things, the U.S. Supreme Court “requires a showing of trauma, not necessarily a

showing of fear” and “[f]ear, shame, guilt, and countless other emotions may overwhelm

a child victim’s ability to communicate”).

As to Craig’s third requirement, again, the state trial court found “there is a

substantial likelihood that she would suffer at least moderate emotional or mental harm

due to – if she’s required to testify in the presence of the defendant in open court.” 

Doc. 25 Ex. B at 38 (emphasis added). This finding is more than the de minimis harm

required by Craig. See Myles v. State of Fla., 602 So. 2d 1278, 1281 and n.4 (Fla.

1992) (explaining “[t]he Craig requirements are not precisely the same as those

provided in the child-witness statute” and that “[t]o be valid, the trial court’s inquiry,

findings, and order thus must comply with all the requirements of Craig and the statute,”

and noting “[m]oderate harm would satisfy the ‘more than de minimis’ requirement of

Craig”).

Notably, although the Cumbie court applied Coy, and not Craig, and Cumbie was

decided pre-AEDPA, the Cumbie court’s observations provide some additional

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guidance for the resolution of McDonald’s claim. See Bell v. Cone, 535 U.S. 685, 693

(2002) (explaining 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”). As the

Cumbie court indicated, the statute at issue, section 92.54(4), Florida Statutes, does 2

not, on its face, require “any showing whatsoever to justify keeping the defendant in the

courtroom while the child testifies by television from another room.” 991 F.2d at 723. 

Although the trial court here, like the trial court in Cumbie, recited the statutory

language in granting the State’s motion, the court here also made some case-specific

findings of necessity referencing T.W.’s age, T.W.’s “limited understanding of the court

and the nature of the testimony that is to be elicited from her,” T.W.’s family situation,

and the court’s observation of T.W. on the CPT videotape. In addition, unlike the trial

court’s finding in Cumbie, the trial court’s findings in this case specifically referenced

“the presence of the defendant.” Compare Doc. 25 Ex. B at 38 with Cumbie, 991 F.2d

at 718; see supra n. 2. And, unlike the State’s motion in Cumbie, the State’s motion

here asserted T.W. “will suffer at least moderate emotional or mental harm due to the

Although section 92.54(1), Florida Statutes (2003), which was applied in 2

McDonald’s case, was amended after 1987 (the version that applied in Cumbie), to

include “due to the presence of the defendant” if the child is required to testify in open

court, subsection (4) of the statute is substantially the same in both the 2003 and 1987

versions to the extent it provides: “During the child’s testimony by closed circuit

television, the court may require the defendant to view the testimony from the

courtroom. In such a case, the court shall permit the defendant to observe and hear

the testimony of the child, but shall ensure that the child cannot hear or see the

defendant.” The 2003 version also includes, in addition to child victim, “person with

mental retardation.” 

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presence of the Defendant if the victim is required to testify in open court.” Doc. 25 Ex.

A at 23 (emphasis added); see supra n. 2. Further, as set forth in detail above, the

record here was more than the “scant record” in Cumbie. Id. at 4-10. Indeed, in

contrast to the situation in Cumbie, the record reveals that McDonald’s Confrontation

Clause rights were considered and the trial court made sufficient findings to defeat his

right to a face-to-face encounter with T.W. 

Based on the foregoing, McDonald has not demonstrated that the state court’s

adjudication of his Confrontation Clause claim resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly established U.S. Supreme Court

precedent; or 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). 

Accordingly, this ground should be denied. 

In the remaining grounds, Grounds 2 through 8, McDonald alleges IAC

concerning trial counsel. In Strickland, the U.S. Supreme Court adopted a two-part test

for such claims:

First, the defendant must show that counsel’s performance was deficient. 

This requires showing that counsel made errors so serious that counsel

was not functioning as the “counsel” guaranteed the defendant by the

Sixth Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that

counsel’s errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.

466 U.S. at 687. To demonstrate ineffectiveness, a “defendant must show that

counsel’s performance fell below an objective standard of reasonableness.” Id. at 688. 

To demonstrate prejudice, a defendant “must show that there is a reasonable

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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.” Id. 

If a state prisoner’s habeas petition “includes a claim that has been ‘adjudicated

on the merits in State court proceedings,’ § 2254(d), an additional restriction applies.” 

Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). The federal court may not grant

relief unless the state court’s adjudication of the claim: (1) resulted in a decision that

was contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States; or (2) resulted in a

decision that was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). “This is a

‘difficult to meet’ and ‘highly deferential standard for evaluating state-court rulings,

which demands that state-court decisions be given the benefit of the doubt.’” Cullen,

131 S.Ct. at 1398 (quoting Harrington v. Richter, 131 S.Ct. 770, 786 (2011), and

Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). This Court’s review “is limited to the

record that was before the state court that adjudicated the claim on the merits.” Cullen,

131 S.Ct. at 1388. 

For this Court’s purposes, importantly, “[t]he 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 v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schiro v.

Landrigan, 550 U.S. 465, 473 (2007)). “And, because the Strickland standard is a

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general standard, a state court has even more latitude to reasonably determine that a

defendant has not satisfied that standard.” Id. It is a “doubly deferential judicial review

that applies to a Strickland claim evaluated under the § 2254(d)(1) standard.” Id.

Ground 2: IAC - Failure to “Move to Nol Pros or Discharge the Petitioner of an

Unlawfully Amended Information” and Trial Court Lacked Jurisdiction 

In Ground 2, McDonald asserts his trial counsel was ineffective for failing to

move to nol pros or discharge him of an unlawfully amended information. Doc. 1 at 5. 

McDonald further asserts the trial court had no jurisdiction to proceed and enter

judgment and sentence. Id. McDonald indicates he was arrested on July 10, 2003,

and the information was filed on July 17, 2003, charging him with capital sexual battery

in Count 1, a violation of section 794.011(2)(a), Florida Statutes, and lewd or lascivious

battery in Count 2, a violation of section 800.04(4)(a), Florida Statutes. Id. On March

31, 2004, the morning of trial, the State amended the information by replacing the

charge in Count 2 with lewd or lascivious molestation, a first degree felony in violation

of section 800.04(5)(b), Florida Statutes. Id. McDonald argues this amendment was

unlawful because it was after the 175-day speedy trial period and did not correct an

error in the existing charge, but substituted a new and different charge based on the

same criminal conduct. Id. McDonald argues the entire information was invalidated by

the unlawful amendment. Id. at 6. McDonald asserts trial counsel erred and “was

grossly negligent for failing to protect the petitioner’s constitutional rights as the trial

court had no jurisdiction to proceed to trial and enter judgment or sentence without a

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valid charging document.” Id. McDonald asserts he raised this claim in his Rule 3.850

motion. Id.

Respondent indicates McDonald raised, in his amended Rule 3.850, a claim that

trial counsel was ineffective for failing to move for a “nol pros or discharge” because the

trial court lacked jurisdiction to proceed on the charges after the information was

unlawfully amended. Doc. 25 at 51. Respondent points out that McDonald there cited

Florida Rule of Criminal Procedure 3.191(a) and State v. Anderson, 537 So. 2d 1373

(Fla. 1989), in support of his claim. Id.; see Ex. NN at 6. Respondent explains that the

state post-conviction trial court summarily denied this claim and the First DCA affirmed

the decision without a written opinion. Respondent argues McDonald has not raised a

federal constitutional claim; rather, he has raised a state speedy trial claim. Doc. 25 at

52-53. 

Respondent further argues that trial counsel cannot be found ineffective for

failing to raise a frivolous claim. Id. at 54-55. The State argued in its response to

McDonald’s Rule 3.850 motion, that under Florida Rule of Criminal Procedure 3.140(j),

the State may amend the information at any time prior to trial because of a formal

defect and, here, the amended information did not infringe on McDonald’s speedy trial

rights because the original information was filed within the speedy trial time period. Id.

at 56. The state post-conviction trial court found the State’s response correct and

adopted the State’s argument. Id. The court further found the only amendment was to

the age of the victim in Count II and designating the correct subsection under 800.04,

and the amended information properly related back to the original information. Id. 

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Respondent argues the amended information did not charge a new or previously

uncharged crime – that the punishment was increased does not change the fact that

the crime was charged in both informations – and trial counsel had no basis to move for

discharge or dismissal of the amended information. Id. at 58. 

In reply, McDonald argues this claim involves both an IAC claim and a

fundamental or plain error claim. Doc. 43-1 at 12 [ECF page #s]. He argues he never

waived his speedy trial rights. Id. He further argues he was entitled to have the

unlawfully amended information dismissed because it charged a new and different

crime, which increased the permissible punishment and level of offense, after the 175-

day speedy trial period had expired. Id. at 13-18. McDonald also argues the state court

unreasonably applied Strickland to the undisputable facts in the record. Id. at 19. 

McDonald raised this claim as his first ground in his amended Rule 3.850 motion. 

See Doc. 25 Ex. NN at 4-8. As Respondent indicates, the state post-conviction trial

court summarily denied the claim, adopting the State’s response which provided:

The defendant initially claims that trial counsel was ineffective for

failing to move for a discharge or nolle prosequi on the Amended

Information because the trial court had no jurisdiction to proceed on those

charges. The defendant claims the charging document was a nullity, his

conviction is void, and he is entitled to immediate release.

On July 17, 2003, the State charged the defendant under a two

count Information with the following offenses: Sexual Battery on a Child

under 12 Years of Age by Defendant 18 Years of Age or Older, a capital

offense under § 794.011(2)(a), Florida Statutes; and Lewd or Lascivious

Battery, a second degree felony under § 800.04(4)(a), Florida Statutes

(see attached original Information). The factual basis for these offenses is

contained within the responding deputy’s initial report (see attached

probable cause affidavit). According to the deputy’s report, the defendant

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made the victim suck on his penis, telling her to suck on it like a popsicle,

and subsequently touched her vagina with his hand.

On March 29, 2004, several days before trial, the State filed an

Amended Information (see attached Amended Information). While the

language contained within the first count remained virtually the same, the

subsection designated in count two changed. The Amended Information

charging the defendant with committing Lewd of [sic] Lascivious

Molestation, a first degree felony under § 800.04(5)(b), Florida Statutes.

The reason for the amended information becomes clear with a

review of Section 800.04, Florida Statutes. Section 800.04(4)(a) provides

“[a] person who engages in sexual activity with a person 12 years of age

or older but less than 18 years of age commits lewd or lascivious

battery, a felony of the second degree” (emphasis added). Section

800.04(5)(b) prohibits similar conduct with a victim who is less than 12

years of age. It is clear from the victim’s trial testimony that she was less

than 12 years of age at the time of the offenses (TT. 179). Thus, while

the Amended Information did increase the possible range of punishment

for the defendant’s conduct as it relates to count two, the Amended

Information corrected an error relating to the age of the alleged victim. 

The victim could not be both under the age of 12 years for count one and

over the age of 12 years for count two. The prosecutor recognized this

mistake, and corrected it prior to trial.

Florida Rule of Criminal Procedure 3.140(j) allows the State to

amend an Information at any time prior to trial because of a formal defect. 

The Amended Information also did not infringe on the defendant’s speedy

trial right as the Amended Information linked to the original Information,

which was filed well within the speedy trial time period. See Fla. R. Crim.

P. 3.191; State v. Clifton, 905 So. 2d 172 (Fla. 5th DCA 2005).

The State’s Amended Information was in accord with the law, and

trial counsel cannot be deemed ineffective for failing to move for

dismissal. As such, he has failed to satisfy either prong of the Strickland

standard. Issue one should be summarily denied by the court without a

hearing.

Doc. 25 Ex. at 80-82; see id. Ex. SS at 331. In addition to adopting the State’s

response, the state post-conviction trial court made these findings:

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To the extent Defendant argues there was fundamental error, this is not

cognizable on a 3.850 claim because fundamental error may be raised on

direct appeal.

As to failure to preserve error or failure to move to dismiss the

Amended Information, the Court adds: The original Information charged

Count II Lewd or lascivious molestation; so did the amended charge on

Count II, all under Section 800.04. The only amendment was the age of

the victim, and designating the correct subsection under 800.04. It is

inconsequential legally that this upgraded the charge to a felony of the

first degree. Generally, it is not even necessary to designate the degree

of the charge or that it is a felony. Rule 3.140(k)(6) and (7). As to the

statutory cite, “error in or omission of the citation shall not be ground for

dismissing the count . . . if the error or omission did not mislead the

defendant to the defendant’s prejudice.” Rule 3.140(d). The error

alleging victim’s age in Count II was obvious on the face of the

Information. The Information on its face charged two sex crimes of the

same victim on the same day and year. However, the allegation regarding

the age of the child in Count I conflicted with her age stated in Count II. 

TW, the victim, was only 5 years old at the trial. (Jury tr. 41) Obviously,

there is no procedural prejudice, as there is nothing the Defendant could

do to dispute the child’s age being under 12 years old on 7/10/03, the

date the crimes were committed, which date remained unamended. 

Defendant misunderstands the nature of the prejudice which cases and

the rules refer to. Improper prejudice is that which misleads the defense

in its preparation of the case, not that which convicts Defendant. The

Amended Information properly related back to the original Information

filed 7/18/03. The trial court would have denied any motion to dismiss

amended Count II or the Amended Information. Therefore, there was no

IAC. (Information; Amended Information)

Doc. 25 Ex. SS at 331. This ruling, affirmed on appeal without opinion, is entitled to

deference and review is limited to the record before the state court. See Cullen, 131

S.Ct. at 1388. 

Nothing indicates the state court’s adjudication of this claim resulted in a decision

that was either (1) contrary to, or involved an unreasonable application of, clearly

established U.S. Supreme Court precedent, or (2) based on an unreasonable

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determination of the facts in light of the evidence presented in the state court

proceeding. See 28 U.S.C. § 2254(d). The record contains the original information and

the amended information. See Doc. 25 Ex. A at 5 (Information filed July 18, 2003), 30

(Amended Information filed March 31, 2004). As the state post-conviction trial court

found, both documents charge two sex crimes involving the same victim, T.W.,

occurring on the same day. In the original information, however, the allegations

regarding T.W.’s age in the first count conflicted with those allegations in the second

count. The amended information corrects this conflict. As the post-conviction trial court

found, McDonald suffered no prejudice by this amendment. The court also found any

motion to dismiss the amended information would have been denied; accordingly, there

was no IAC. Moreover, to the extent McDonald’s claim rests on state law grounds, it is

not sufficient to warrant review or relief by a federal court. See, e.g., Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991). This ground should be denied. 

Ground 3: IAC – Incapacity of Counsel Due to Head Injuries

In Ground 3, McDonald argues trial counsel was ineffective due to incapacity

from his head injuries. Doc. 1 at 7. McDonald asserts that counsel informed him and

the trial judge that, on the day before trial, counsel had suffered seizures and injured his

head. Id. Counsel indicated he was fine but also said he was “experiencing some

lightheadedness” and “may require more comfort breaks” than usual. Id. McDonald

asserts that counsel’s “inability to function completely is evident where counsel

repeatedly erred in recalling what witnesses had said to him during trial” and the trial

judge “had to reprove counsel for his rambling and illogical cross-examination of the

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state’s key witness, T.W.” Id. McDonald asserts counsel’s negligently proceeded to

trial, provided ineffective assistance, and prejudiced the defense by “his impaired ability

to intelligently argue the case and subject the state’s evidence to zealous and

meaningful adversarial testing.” Id. McDonald argues that if counsel had accepted the

court’s offer of a continuance, the outcome of the proceeding may have been different. 

Id. McDonald indicates he raised this claim in his Rule 3.850 motion. Id.

Respondent argues McDonald waived this claim during the course of his state

post-conviction proceedings. Doc. 25 at 59. Respondent points out that the state postconviction trial court held an evidentiary hearing on this claim on June 16, 2008;

however, at the hearing, McDonald refused to present any testimony, despite being

warned that the failure to do so would result in a waiver of the claim. Id. Respondent

further argues that, even if the claim was revived when the state court allowed

McDonald to file an amended Rule 3.850 motion, the evidentiary hearing had occurred

and McDonald had abandoned the claim. Id. 

On the merits, Respondent asserts McDonald has not established trial counsel

was ineffective, and McDonald cannot establish deficient performance or prejudice. Id.

at 63-64. Respondent explains that the State post-conviction trial court adopted the

State’s response to this claim in the Rule 3.850 proceeding, and the court also made

additional findings. Id. at 64-66. Respondent argues the record supports the state

court’s determination, and McDonald is not entitled to relief. Id. at 66. 

In reply, McDonald argues he did not abandon this issue in the state courts, he

did raise it on appeal, and he is not procedurally defaulted or barred from raising it in

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this proceeding. Doc. 43-1 at 20. McDonald asserts a full and fair evidentiary hearing

was never held, and the state court unreasonably applied Strickland when it denied

relief without an evidentiary hearing. Id. McDonald argues that “[w]ithout the testimony

of counsel’s doctor regarding the seizures and head injuries counsel sustained one day

before trial, the court could not have reasonably concluded that counsel’s

representation involved reasonable professional judgment.” Id. at 20-21. McDonald

submits that counsel’s head injury “was or may have been responsible for at least four

episodes of confusion during trial,” and counsel himself admitted “he was operating in a

diminished capacity.” Id. at 21. McDonald asserts that his “acceptance of counsel’s

self-evaluation before trial began, and before counsel’s errors and deficiencies caused

petitioner to lose confidence in counsel’s capacity to effectively represent him, meant

nothing.” Id. McDonald requests a full and fair evidentiary hearing on this claim. Id. at

22.

McDonald raised this in his second claim in his amended Rule 3.850 motion filed

in state court. See Doc. 25 Ex. NN at 8-9. In the Rule 3.850 proceeding, the State filed

the following response, adopted by state post-conviction trial court in denying relief:

In his second claim, the defendant asserts that trial counsel was

ineffective because of the incapacity he suffered as a result of head

injuries. The defendant states that counsel’s ineffectiveness is clear on

the face of the record. The defendant points to three instances in which

counsel erred in recalling a witnesses’s testimony, one place in which the

court informs counsel that he is all over the place when examining the

victim, and one place in which counsel states he must be losing his train

of thought.

Prior to trial, a short sidebar discussion was conducted between the

court, the prosecutor, trial counsel, and the defendant (TT. 14-16). Trial

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counsel informed the court that he had suffered two mild seizures the day

before during a medical procedure, and one of these seizures had caused

him to hit the back of his head (TT.15). Trial counsel told the court that he

felt fine, may have to ask for a few more comfort breaks, but nevertheless

was in full capacity and capable of handling the case (TT. 15). The trial

court inquired as to whether this was satisfactory with the defendant, and

he responded, “yes, sir” (TT. 15). Trial counsel also had discussions

with the defendant and his family prior to trial about the seizures

(Defendant’s exhibit A). It was the defendant’s decision to proceed to trial

despite the court’s apparent agreement to continue the trial if necessary. 

The trial transcript selections cited by the defendant are few and far

between, and certainly are not a fair representation of defense counsel’s

overall trial performance. The defendant has also not linked these

instances of claimed ineffectiveness with the seizures and head injury

suffered by defense counsel the day before. The defendant’s claim that

trial counsel may have had a financial motivation to quickly dispose of the

defendant’s case is totally irrelevant to this issue and speculative at best.

Doc. 25 Ex. OO at 82-83. The state post-conviction trial court made further findings, in

denying this ground: 

This Court adds: an evidentiary hearing is not a forum granted to

defendants to simply explore the possibilities of IAC. In a 3.850 motion,

“First, the defendant must allege facts that would support a conclusion

that his lawyer’s performance was deficient”. (emphasis added.) Vathis v.

State, 859 So.2d 517, 518 (Fla. 1st DCA 2003), review dismissed 887 So.

2d 1290 (Fla. 2004). No trial court should have to unnecessarily disrupt

its duty to manage defendants with current charges to dispose of fishing

expeditions for possible IAC. . . . 

Here, Defendant’s allegations that his attorney had been seriously

ill the day before, or on the day of trial, do not support a conclusion that

defendant was deprived of the constitutional right of counsel. This is

especially so when the attorney himself addressed the Court and

reassured the Court he felt fine enough to proceed and the court properly

inquired. (Jury tr. 14-16) The record itself shows counsel was reasonably

effective throughout the trial. (Jury tr. 1-347) Brief lapses in memory or

trains of though by counsel usually occur [in] trials, regardless of the

cause. Defendant points to nothing that his lawyer did, or did not do,

regardless of the cause, that was prejudicial to such an extent that

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Defendant was deprived of his constitutional right to counsel. Vathis,

supra.

By the same token, assuming the truth of fact that Defendant’s

lawyer had financial problems (legal or otherwise), this claim of fact does

not logically justify a conclusion that counsel was ineffective. Reasonable

attorneys can argue whether counsel’s performance here was less than

ideal from time to time during the trial. But, defense counsel did nothing,

nor omitted anything, that was so important that it rose to a level that

justifies a conclusion that counsel was constitutionally ineffective. No

evidentiary hearing is justified or necessary to confirm or explain a

conclusion of IAC that is not logically deduced from the Defendant’s

allegations. Alleging possibilities and taking leaps of logic, is not enough.

(Trial tr. 1-346). See Vathis, supra.

Doc. 25 Ex. SS at 332. This ruling, affirmed on appeal without opinion, is entitled to

deference. 

The state court’s determination is supported by the record. Specifically, a review

of the record reflects that defense counsel informed the judge, opposing counsel, and

McDonald of his health issue before the trial started, and McDonald indicated he

agreed with defense counsel proceeding: 

MR. EAGEN: Your Honor, Mr. McDonald and Mr. Allman are aware of

this. Yesterday, as I informed the Court previously, I had a medical

procedure that I did, and during that procedure I unfortunately had two

mild seizures and hit the back of my head during one of them. And I told

Mr. Allman that I would make him aware of any problems this morning. I

just wanted the Court to be aware of the situation. And I woke up this

morning not – you know, I mean I felt fine. But I do – I am experiencing

some lightheadedness. I am drinking water at the table, and I may

request more breaks of the, you know, comfort breaks than I normally

would. And I wanted the Court to be aware of that.

THE COURT: That’s fine.

MR. EAGEN: And if for some reason I do feel ill, I will try to – I don’t want

the jury to be aware of any of this.

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THE COURT: That’s fine with me. And this is satisfactory with you, Mr.

McDonald?

THE DEFENDANT: Yes, sir.

THE COURT: Okay.

MR. EAGEN: He is aware of it, and I just didn’t want to – I wanted at least

for you to be aware of it.

THE COURT: But you feel you are, at the present time capable of –

MR. EAGEN: At the present time, I feel like I’m in full capacity and

capable of handling the case.

THE COURT: Okay. Fair enough.

MR. EAGEN: But I did want the Court to be aware, if something unusual

should happen, I did not want the Court to be unaware of what the cause

of that was.

THE COURT: That’s fair enough, sir. I appreciate that.

MR. EAGEN: Thank you, sir.

Doc. 25 Ex. B at 14-16. Thus, McDonald was aware of defense counsel’s condition

and agreed to proceed with the trial.

In his amended Rule 3.850 motion, McDonald cites to pages 52, 201, 217,and

260 of the trial transcript in support of his assertion that defense counsel’s “inability to

function completely as counsel is evident where counsel repeatedly erred in recalling

what witnesses had said to him during trial.” Id. Ex. NN at 8 nn.15-16. The first

instance occurred in the cross-examination testimony of D.P, T.W.’s mother, during the

pre-trial hearing on the State’s section 90.803(23) motion to have child hearsay

statements admitted:

Case No. 4:10cv428-RH/CAS
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Q Okay. You were aware at the time that they [McDonald and his wife,

D.P.’s older daughter, and their two children] came down that there had

been a prior incident up in – or there was an incidence of domestic

violence up in Virginia where [S.M., McDonald’s wife] was arrested,

weren’t you?

A Yes, I’m aware of that.

Q And that Mr. McDonald had to have her arrested?

A That’s correct.

Q And you weren’t too happy about that, were you?

A Well, it was something that I got involved in only because of her calling

me. But I mean no, I wasn’t happy about the –

Q You were angry about it, right?

A No, I wasn’t angry. It’s nothing that any mother would wish upon their

child.

Q Okay, of her being arrested, right?

A No, I wasn’t angry about her being arrested. No, that’s not true.

Q What were you angry about?

A I wasn’t angry.

Q You just said you were.

MR. ALLMAN: I don’t –

BY MR. EAGEN:

Q Okay, scratch. I thought I heard you say you were angry.

A No.

Q So you had no anger towards Mr. McDonald for having your daughter

arrested?

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A No.

Doc. 25 Ex. B at 51-52. It is not clear from this excerpt whether defense counsel

merely confused the witness’s answer of not being “happy” with being “angry” or

whether defense counsel may have been trying to get the witness to admit to being

angry. Regardless, it does not appear to be ineffective assistance.

The second instance cited by McDonald occurred during defense counsel’s

cross-examination of T.W. during the trial:

Q Were you playing in the – in a room with air conditioning or not? Was it

– was it cool in the room where you were, or not?

A I don’t know.

Q No? No what? You don’t remember if it was an air conditioner?

A (Shaking head.)

Q Were you in the den?

A Huh?

Q I’m sorry?

A (No oral response.)

Q Just one moment.

(Phone conversation between defendant and attorney.)

BY MR. EAGEN:

Q What room – When you were playing with [K.] and [M.], okay, what kind

of – what kind of room was that?

A In my room.

Case No. 4:10cv428-RH/CAS
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Q You were playing in your room. Okay. And does your room have an air

conditioner?

A No.

Q Were you hot that day?

A Yes.

Q Yeah. It was hot in the house, right?

A Yes.

Q Okay. You never remember playing in a room with a couch in it or

anything?

A No.

Q No? Okay. Now, when you were playing in your room with [K.] and

[M.], right, what happened when you were playing with [K.] and [M.] in

your room?

A My mom tell us to clean up.

THE COURT: Why don’t you get down to a specific timeframe, Mr. Eagen. 

You’re all across the board here with this child.

MR. EAGEN: I’m trying – I’m trying to keep the conversation open, Your

Honor. I’m trying to get it centered. Okay.

BY MR. EAGEN:

Q [S.M.] and Michael and [K.] and [M.] came to visit in July. Do you

remember?

A Yes.

Q Okay. And they stayed with you for a few days, right?

A Yes.

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Doc. 25 Ex. B at 200-02. This instance of the trial judge advising defense counsel to

“get down to a specific timeframe” does not reflect deficient performance of counsel. It

appears counsel was trying to see what details T.W. remembered about the day these

events occurred and asking T.W. questions, after conferring with McDonald. This fits

with defense counsel’s apparent strategy of focusing on any inconsistencies in T.W.’s

account. See, e.g., id. Ex. C at 297 (defense counsel’s first closing argument: “The

things I do want to point out, though, about the tape is the inconsistencies as to what

room, rooms, this alleged incident might have occurred in. It started out there was a –

in the bathroom, brushing her teeth; and then it went to her brother’s room, and her

brother’s room was mentioned several times; and then it went to the living room; and

then in when to the room where Mr. McDonald and his wife were sleeping. And so the

child was talking about several different rooms, all over the place, and even Ms. Ellis

stated in her testimony that she could not ever really lock down the room.”). 

The third instance cited by McDonald also occurred during defense counsel’s

cross-examination of T.W. during the trial:

Q Okay. [T.W.], in the movie that day that you were there along with

Michael [McDonald], remember, and you saw that movie on the TV, right?

A Uh-huh.

Q Did you see a lady doing what you said Michael asked you to do? Did

you see a – Did you see a lady doing that to another man?

A No.

Q I’m sorry?

A No.

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Q No? You saw naked people on the TV though, right?

A Yes.

Q What were they doing, these naked people?

A I don’t know.

Q Were they kissing? You know what kissing is, right? Were they

kissing?

A I don’t know.

Q Were they touching each other with their hands?

A Yes.

Q Yes? Or no? I couldn’t hear.

A Yes.

Q Okay, yes. Okay. That’s better. Thank you, [T.W.]. You’re doing real

good. Okay. Do you know if the lady on the – on the TV, in the movie,

ever was sucking the man in that place where you drew on the drawing?

A No.

Q Yes? Okay.

THE COURT: She said no.

BY MR. EAGEN:

Q Oh, I’m sorry. Sorry. You said no?

A Yes.

Q Okay. Yes, you said no. . . .

Doc. 25 Ex. B at 216-17. This does not reflect deficient performance. Rather, it

appears defense counsel was simply having difficulty hearing the witness answer the

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question, as he indicated after her response just before this instance. Notably, another

similar instance occurred a little before this, also during defense counsel’s crossexamination of T.W., where defense counsel, from the written record, actually heard the

answer correctly:

Q Okay. And did you play – And then what did you play? Were you still

playing dolls, or where you playing school?

A School and dolls.

Q School and dolls, okay.

THE COURT: She didn’t say school, counsel. She said dolls.

MR. EAGEN: I thought she said school and dolls.

THE COURT: No, you said school and dolls.

MR. EAGEN: Oh, I’m sorry. I misheard then. I thought she said school

and dolls.

BY MR. EAGEN:

Q Okay. So you didn’t play school?

A (Shaking head.)

Q Is that right?

A Yes – No.

Q No, okay. You just played dolls?

A (No oral response.)

Q Right?

A Yes.

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Doc. 25 Ex. B at 206-07.

The final instance cited by McDonald occurred during defense counsel’s crossexamination of Leshone Davis, the neighbor:

Q Okay, so you would have gotten the police involved?

A Exactly. Correct.

Q And you didn’t think to advise [D.P., T.W.’s mother] to do that?

A No, I didn’t think she just – As the person that I knew [D.P.]? No, I 

wouldn’t feel that she just angry and cut the fool, no. As I know her, that

she would have just called the police, as that’s what she had did.

Q I understand that, but you didn’t advise her to call the police?

A No, not at all. We didn’t talk about it.

MR. EAGEN: May I have a moment, Your Honor?

THE COURT: Sure.

(Discussion between defendant and attorney.)

BY MR. EAGEN:

Q Ms. Davis, earlier you said that you thought that the child – that the

children were dropped off at your place around 2:00 or midmorning –

MR. ALLMAN: Objection. That’s not what she said.

THE COURT: No.

BY MR. EAGEN:

Q I’m sorry, I didn’t understand your answer to that. Could you tell me

approximately what time you thought the children were dropped off at your

home?

A It was, like I say, it was between 2:30 or 3:00 o’clock, close to about that

time.

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Q Okay. Could it have been earlier?

A No, it was about that time because they had asked – when they was

getting ready to go pick up Ms. [D.P.], and it was like about close to

probably about 5:00 o’clock when they came back, so I know it was about

2:30 or 3:00 o’clock.

Doc. 25 Ex. C at 260-61. Again, this does not reflect deficient performance. Indeed, a

review of Davis’s testimony on direct indicates her testimony about the time she was

asked to watch the children was a bit unclear, and she did mention “towards the

morning”:

Q . . . Now, on July 10th of 2003, did anyone bring over some children for

you to mind?

A Yes.

Q And who was that?

A That was [S.M.] and Michael McDonald.

Q Okay. Do you remember what time that was?

A It was between 3:00 o’clock – something between about 3:00 to – about

2:30 to 3:00 o’clock. I know it was like in the afternoon, close to the – you

know, towards the morning.

Q Okay. Midafternoon?

A Yes, something like that.

Doc. 25 Ex. C at 237-38. Therefore, defense counsel’s question on cross was not

improper and did not constitute deficient performance.

Based on the foregoing, McDonald has failed to establish that the state court’s

determination is contrary to or an unreasonable application of United States Supreme

Court precedent. Accordingly, this ground should be denied.

Case No. 4:10cv428-RH/CAS
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Ground 4: IAC – Failure to Object to and Move to Exclude 

Impermissible Cumulative Hearsay

In Ground 4, McDonald argues there are four instances of impermissible

cumulative hearsay presented at trial, without objection by defense counsel, in the

following witnesses’ testimony and evidence: (1) D.P., T.W.’s mother; (2) Leshone

Davis, neighbor; (3) Kimberly Ellis, CPT investigator; and (4) the CPT video-taped

interrogation of T.W. Doc. 1 at 8. McDonald argues an objection to this hearsay would

have been sustained because none of the testimony was necessary as T.W. testified at

trial, and the prejudicial effect of the testimony far outweighed the probative value as it

allowed “multiple, repetitive hearsay witnesses to improperly bolster the credibility of the

alleged victim.” Id. The admission of the video “forensic interview” was testimonial in

nature and violated McDonald’s right to confrontation because McDonald was not

present during questioning and had no opportunity to cross-examine T.W. Id. 

McDonald asserts that without this prejudicial testimony, the outcome of the proceeding

may have been different. Id. at 9.

As to the merits, Respondent argues that McDonald has not established that trial

counsel was ineffective and he cannot establish the state court’s ruling was contrary to

or an unreasonable application of controlling U.S. Supreme Court precedent. Doc. 25

at 71. Respondent indicates the state post-conviction trial court adopted the State’s

response to this claim as presented in McDonald’s Rule 3.850 proceeding, and quotes

that response. Id. at 72-74. Respondent argues the record supports the state court’s

Case No. 4:10cv428-RH/CAS
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determination, the testimony was admissible under Florida law, and McDonald has cited

no U.S. Supreme Court precedent to the contrary. Id. at 74.

In reply, McDonald adopts all arguments from his state court filings. Doc. 43-1 at

22. He cites Crawford v. Washington, 541 U.S. 36 (2004), in support of his argument

that the admission of the CPT video of T.W. violated his rights under the Confrontation

Clause. Id. at 23. McDonald argues counsel was ineffective for failing to object to this

as well as to the testimony of D.P., Ellis, and Davis. Id. McDonald argues all this

testimony was admitted under section 90.803(23), which requires specific findings of

reliability that the trial court did not make. Id. at 23-24. McDonald argues that “[u]nder

Florida law, the inadmissible hearsay would have been excluded upon a motion to do

so” and, therefore, “there is a reasonable probability that, absent counsel’s errors, the

result of the trial would have been different.” Id. at 26. McDonald concludes that the

state court thus unreasonably applied Strickland, and requests this court grant de novo

review and hold a hearing on this ground. Id. 

McDonald raised this as the third claim in his amended Rule 3.850 motion filed in

state court. See Doc. 25 Ex. NN at 9-14. As Respondent explains, in denying this

claim, the state post-conviction trial court adopted the State’s response, which stated:

In his third claim, the defendant asserts trial counsel was ineffective

for failing to object to inadmissible cumulative hearsay. The defendant

claims there are four instances of impermissible hearsay admitted without

objection from trial counsel: [1] testimony of [D.P.]; [2] testimony of

Leshone Davis; [3] testimony of Kimberly Ellis; and [4] the admission of

the video interview of the victim conducted by Ms. Ellis.

[1] [D.P] testified at a pretrial hearing on the State’s Notice of Intent

to Introduce Child Hearsay Statements (TT. 40-57). She testified that the

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victim was very nervous and scared when the victim related the incident

(TT. 46-47). The victim told [D.P.] that the defendant touched her “down

there” and “made her suck his thing like a popsicle” (TT. 47).

On one hand, the defendant claims [D.P.’s] testimony is

impermissible hearsay that trial counsel did not object to, and then later

claims that trial counsel did object to the admission of [D.P.’s] testimony.

The record reveals that trial counsel did in fact object to the admissibility

of [D.P.’s] testimony (TT. 60). Trial counsel argued against the

admissibility of child hearsay by attempting to show [D.P.’s] bias towards

the defendant. Trial counsel cannot be deemed to be ineffective simply

because the trial judge ruled against his objection or because the

defendant believes trial counsel should have been more strenuous in his

objection on the issue (TT. 60-61).

It also bears noting that [D.P.’s] testimony was not admitted under

the excited utterance exception to the hearsay rule found in section

90.803(2), but rather under the child hearsay exception found in section

90.803(23). The defendant’s reliance on Pressley and Idaho v. Wright is

therefore misplaced. See Pressley v. State, 968 So. 2d 1039 (Fla. 5th

DCA 2007) (victim’s statements to mother not admissible under

excited utterance exception because the victim had time for reflection

before making the statements); Idaho v. Wright, 497 U.S. 805 (1990) (trial

court erred in admitting victim’s statements made to a pediatrician under

Idaho’s residual hearsay exception).

[2] Trial counsel conceded the admissibility of Leshone Davis’s

testimony (TT. 14). Leshone Davis only testified at trial (TT. 235-263).

Ms. Davis testified that the victim had told her that the defendant made

the victim go down on him by putting his privacy in her mouth, and spitting

on his hand before putting it inside her (TT. 239-240). Ms. Davis testified

that the victim was scared when she related this incident to Ms. Davis (TT.

241).

Ms. Davis’s testimony was admissible under the child hearsay

exception found in Section 90.803(23). The State did not attempt to admit

her testimony under the excited utterance exception. Sufficient safeguards

of reliability were presented at trial allowing Ms. Davis’s testimony to be

admissible as to the victim’s disclosure to her. Trial counsel cannot be

deemed ineffective for failing to object to testimony that was otherwise

admissible.

Case No. 4:10cv428-RH/CAS
Page 68 of 100

[3] The defendant claims that Kimberly Ellis’s testimony and the

admission of the Child Protection Team (CPT) video were impermissible

under the Confrontation Clause, and the medical diagnosis and treatment

exception under Section 90.803(4). Trial counsel did not object to the

admissibility of the CPT video (TT. 11-12, 130-131). The CPT video was

admitted and published to the jury during Ms. Ellis’s testimony (TT. 128-

179).

Jones is inapposite. In Jones, the Florida Supreme Court held that

statements by the victim identifying the abuser were inadmissible under

the medical diagnosis and treatment exception found in Section

90.803(4). State v. Jones, 625 So.2d 821 (Fla. 1993). The State did not

admit the victim’s statements to Ms. Ellis under this exception, but rather

under the child hearsay exception found in Section 90.803(23).

The defendant cites Contreras to support his argument that

statements made to CPT forensic interviewers are per se violations of the

confrontation clause. Contreras v. State, 910 So.2d 901 (Fla. 4th DCA

2005). However, Contreras was a case in which the victim did not testify. 

In the case sub judice, the victim was available and did testify at trial.

The defendant’s reliance on Allison is likewise misplaced because

the child in Allison was a witness to a crime, not a “victim” under Section

90.803(23). Allison v. State, 661 SO.2d 889 (Fla. 2d DCA 1995). The

child’s testimony in Allison did not meet the requirements found in Section

90.803(23). In the case sub judice, the victim’s statements, memorialized

on the CPT video, met the requirements of Section 90.803(23) and

qualified as child hearsay.

The CPT video was properly admitted during Ms. Ellis’s testimony

as child hearsay under Section 90.803(23) as sufficient safeguards of

reliability were presented at trial. Trial counsel cannot be deemed

ineffective for failing to object to testimony that was otherwise admissible.

[D.P.’s] testimony, Ms. Davis’s testimony, Ms. Ellis’s testimony and

the CPT video were properly admitted under the child hearsay exception

to the hearsay rule. Thus, the defendant’s cumulative error claim must

also fail. See Bryan v. State, 748 So. 2d 1003 (Fla. 1999) (cumulative

error argument must fail if allegations of individual error are found to be

without merit).

Case No. 4:10cv428-RH/CAS
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The defendant has failed to show deficient performance, and that

but for these deficiencies the result of the trial would have been different. 

The court should summarily deny issue three without an evidentiary

hearing.

Doc. 25 Ex. OO at 83-86. This ruling, affirmed on appeal without opinion, is entitled to

deference. 

The trial court’s determination is supported by the record. Specifically, regarding

the testimony of D.P., trial counsel did object during the pretrial hearing on the State’s

motion to admit child hearsay statements pursuant to section 90.803(23). See Doc. 25

Ex. B at 13, 60. Defense counsel challenged the admissibility of D.P.’s testimony:

I would oppose the mother of the child, and – based on the factor that –

due to the prior domestic – One of the factors that the Court can consider

is the prior – is there is a domestic dispute between the parties. And in

this particular case, there’s a long outstanding history of disharmony

within this family, especially from [D.P.] towards Mr. McDonald. She was

against the marriage from the beginning because of the interracial

marriage, and her animosity was visible towards Mr. McDonald throughout

the period of time that he was – well, he is still married to his wife. So I

think that’s a factor that the Court should be cognizant of and could utilize

in determining not to allow the statement to come in.

Id. at 13. After D.P.’s testimony during the hearing on the section 90.803(23) motion,

defense counsel again argued:

Well, Your Honor, I previously stated my objection, and I based it on the

fact of the domestic relationship that may or may not have existed. 

Obviously I believe that the dynamics of the family will come out more at

trial than they did at this brief moment in the proceeding, but I do believe

that there – I think the other portions of the trial will show a difference in

the family dynamics than what has been presented here. I think there is a

genuine, if not dislike, I think there’s a genuine indifference between [D.P.]

and Mr. McDonald, whether based on the infidelity and the domestic

violence arrest and the fact that he’s white and she is of color. And based

on that, we would request that it not come in, and we’ll just stand on our

previous objections.

Case No. 4:10cv428-RH/CAS
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Id. at 60. Therefore, contrary to McDonald’s assertion, defense counsel did object to

the admission of D.P’s testimony. The trial court overruled that objection, however, and

allowed the testimony under the child hearsay exception, as the post-conviction trial

court explained. 

As to the testimony of Leshone Davis, the trial court also admitted that testimony

under the child hearsay exception. As the state post-conviction trial court found, that

testimony was properly admitted as sufficient safeguards of reliability were presented at

trial. Accordingly, defense counsel’s failure to object was not IAC. Notably, from the

record, defense counsel consulted with McDonald just before he indicated he would not

object to that testimony:

MR. EAGEN: . . . As far as the neighbor – Could I have one moment, Your

Honor?

THE COURT: Sure.

(Discussion between defendant and attorney.)

MR. EAGEN: As far as the neighbor, Ms. Davis, I’m well prepared. I had

already anticipated that that was going to come in, Your Honor, because

of the – and, you know, the nature of the statement, so I really don’t have

an argument as far as that is concerned.

Id. at 13-14. Similarly, concerning the testimony of Kimberly Ellis and the admission of

the CPT video tape, the record supports the state court’s determination that defense

counsel’s failure to object was not IAC. 

McDonald has failed to establish that the state court’s determination is contrary

to or an unreasonable application of United States Supreme Court precedent. “Federal

courts in habeas corpus proceedings do not sit to review state evidentiary questions

Case No. 4:10cv428-RH/CAS
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unless the alleged error is of such magnitude as to render the state court defendant’s

trial fundamentally unfair.” Land v. Sec’y, Dep’t of Corr., No. 8:04cv2524-T-27TGW,

2008 WL 816707, at *12 (M.D. Fla. Mar. 26 2008) (citing Estelle v. McGuire, 502 U.S.

62, 72 (1991)). Here, McDonald had the opportunity to cross-examine T.W., as well as

D.P., Leshone Davis, and Kimberly Ellis, as all of these witnesses testified during the

trial. The trial court admitted the testimony under section 90.803(23), and McDonald

has not shown the court would have ruled differently if counsel had sought to exclude

the challenged testimony on different grounds. See, e.g., Kuhns v. Sec’y Dep’t of Corr.,

No. 2:08cv163-FtM-29SPC, 2011 WL 1085013, at *19 (M.D. Fla. Mar. 21, 2011)

(opinion and order on § 2254 petition, rejecting petitioner’s IAC claim concerning

counsel’s failure to object to child hearsay testimony from victim’s mother and CPT

member, explaining defense counsel intentionally did not seek to exclude testimony

from CPT worker because, as matter of strategy, counsel wanted to use testimony to

show inconsistencies with child’s statements and, further, trial court admitted testimony

under section 90.803(23) and petitioner failed to show court would have ruled differently

if counsel had sought to exclude testimony under different grounds and, thus, petitioner

could not establish prejudice). This ground should be denied.

Ground 5: IAC – Failure to Contact and Present Expert Witnesses 

and McDonald’s Wife as Fact Witness

In Ground 5, McDonald argues his trial attorney rendered ineffective assistance

in failing to contact experts to determine the potential value of their testimony, failing to

present expert witnesses to refute the State’s allegations at trial, and failing to call

Case No. 4:10cv428-RH/CAS
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McDonald’s wife as an important fact witness. Doc. 1 at 9. McDonald refers to this

Rule 3.850 motion for “the complete details” as “[t]his was the most voluminous and

complicated issue” he raised. Id. He indicates he supplied the names of six possible

expert witnesses who could have refuted the State’s allegations “with hard scientific

evidence that proves [his] absolute innocence.” Id. McDonald argues that counsel’s

decision to not even contact experts was not professionally reasonable and prejudiced

the outcome of the trial by allowing the State’s evidence to stand unopposed. Id. 

McDonald indicates defense counsel presented no witnesses at trial, instead relying on

the perceived weaknesses in the State’s case. Id. at 10. McDonald asserts he “was

accused of acts involving the transfer of his serological DNA to the person and clothing

of T.W., and digital penetration of a minor who was a medically verified virgin” and

“[e]vidence of these allegations that would have been conclusively refuted by the FDLE

analysis fo T.W.’s clothing, and the medical examination of T.W. should have been

introduced by counsel through experts for purposes of impeachment and illustration of

inconsistency.” Id. The experts would have reviewed the evidence and allegations and

“testified that, to a reasonable degree of professional certainty, the allegations were

medically and scientifically impossible.” Id. Experts could have also addressed the

reliability of T.W. as a witness. Id. Finally, McDonald’s wife was present and willing to

testify “regarding instances where she observed her mother and neighbor telling T.W.

what to say at about the alleged events.” Id. at 11. McDonald argues that trial

counsel’s decision not to interview the potential witnesses was not objectively

reasonable and could not have been an informed tactical decision. Id.

Case No. 4:10cv428-RH/CAS
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On the merits, Respondent asserts McDonald has not established trial counsel

was ineffective under Strickland, and cannot establish the state court’s ruling was

contrary to or an unreasonable application of U.S. Supreme Court precedent. Doc. 25

at 79-80. Respondent indicates the state post-conviction trial court adopted the State’s

response to this claim as presented in McDonald’s Rule 3.850 proceeding, and quotes

that response as well as the additional findings the state court made. Id. at 80-86. 

Respondent argues the record supports the state court’s determination, and McDonald

has shown neither deficient performance nor prejudice. Id. at 86-88.

In reply, McDonald adopts his argument from the state court proceedings. Doc.

43-1 at 27. McDonald argues trial counsel had a duty, under prevailing professional

standards, to conduct a thorough investigation, and counsel did not do that. Id. 

McDonald indicates that The Florida Bar considered his complaint concerning counsel’s

failure to investigate and consult with experts, and concluded that counsel’s conduct

was not acceptable. Id. at 31. The Florida Bar found McDonald’s counsel’s

performance so far below its standards that it asked him not to take cases like

McDonald’s again. Id. at 32. The First DCA unreasonably applied Strickland where

counsel’s failures were not the result of adequate investigation. Id. at 34. 

Except for the portion of the argument concerning The Florida Bar complaint,

McDonald raised this as the fourth claim in his amended Rule 3.850 motion filed in

state court. See Doc. 25 Ex. NN at 14-26. As Respondent explains, in its order

denying this claim, the state post-conviction trial court adopted the State’s responses

Case No. 4:10cv428-RH/CAS
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addressing (1) the medical witnesses, (2) the serological witnesses, (3) the

psychological witnesses, and (4) McDonald’s wife, S.M. 

Medical Witnesses

First, concerning the medical witnesses, the State’s response, adopted by the

post-conviction trial court, provided:

The defendant claims that trial counsel was ineffective for failing to

call medical witnesses who would have refuted claims made by a state

witness. At trial, the State called Lynn Steele, a nurse practitioner who

works part time with the Child Protection Team (TT. 81-94). Ms. Steele

testified that she has been declared an expert at least seven or eight

times (TT. 84). Ms. Steele testified regarding an examination she

conducted of the victim the day after the defendant committed the

charge offenses. Ms. Steele testified that it is normal for her examinations

to be unremarkable (TT. 87-88, 91-93, 94). Ms. Steele’[s] testimony

indicated that she found no signs of trauma, injury, or pubic hairs that she

could opine were evidence that a sexual act had occurred. Ms. Steele

also stated that the lack of physical injury or evidence should not be used

as evidence that nothing happened.

The defendant asserts that trial counsel should have called Dr.

Robert Fay and Dr. Edward Wiley to conclusively refute Ms. Steele’s

testimony. According to the defendant, these doctors could have

demonstrated that it would be medically impossible for the victim’s

allegation to be true. The defendant further claims that these doctors

would have testified that the alleged digital penetration of the victim’s

vagina would have ruptured her hymen. The defendant opines that the

doctors’ testimony would have created reasonable doubt in the jury’s

mind. The defendant further asserts that the two doctors were available to

testify at trial.

The issue of penetration was totally irrelevant to the prosecution of

the defendant as to Count Two. The defendant was charged by

Information with committing a Lewd or Lascivious Molestation on July 10,

2003, contrary to Section 800.04(5)(b), Florida Statutes (2002).

Specifically, the Information alleged that the defendant touched the

victim’s breasts, genitals, genital area, or buttocks, or the clothing

covering them in a lewd or lascivious manner. In his opening statement,

the prosecutor noted that the defendant committed this crime by “rubbing

Case No. 4:10cv428-RH/CAS
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his fingers on her vaginal area after spitting on his fingers” (TT. 67). [D.P.]

testified that the victim told her “he put spit on his finger and put it down in

her vaginal area” (TT. 106). Ms. Ellis testified that the victim marked the

vaginal area on the female drawing (TT. 162, 164). The victim also

marked the vaginal area on another female drawing during trial (TT. 185,

State’s trial exhibit 4). Ms. Davis testified that the victim put her hand

between her legs when she was showing Ms. Davis where the defendant

touched her with is hands (TT. 240). In his closing argument, the

prosecutor stated

Mr. McDonald intentionally touched, in a lewd or lascivious

manner, the breasts, genitals, genital area, or the clothing

covering them, of [the victim]; and that Mr. McDonald was 18

years of age or older. Notice it makes no difference whether

he touched her clothing or skin on skin.

(TT. 307). The prosecutor further argued that it does not make a

difference whether the defendant touched her genitals or the clothing

covering them (TT. 307). The prosecutor also stated that “the mere

rubbing on the vagina is not going to leave bruises or marks” when he

referenced Ms. Steele’s testimony (TT. 314). Most importantly, the

prosecutor never argued or presented testimony that there was digital

penetration of the victim’s vagina.

Even assuming that trial counsel was ineffective for not calling

these two doctors to refute Ms. Steele’s testimony, the defendant cannot

show that the outcome of the trial would have been different absent this

deficient performance. There was no allegation of penetration during trial.

Defense expert testimony regarding lack of physical signs of penetration

would have been consistent with the State’s case-in-chief in which it was

argued that the defendant manually manipulated the victim’s vaginal area.

The State never claimed penetration occurred.

Doc. 25 Ex. OO at 87-89. The state post-conviction trial court made further findings

regarding the medical witnesses:

Fay and Riley [sic], even if they would testify as Defendant alleges, there

was no factual basis in the record upon which to base their opinion.

Penetration was never alleged or argued. The Court would have

disallowed their testimony as irrelevant and it risked misleading the jury or

confusion of the issues.

Case No. 4:10cv428-RH/CAS
Page 76 of 100

Id. Ex. SS at 332-33. 

Serological Witnesses

Second, the state post-conviction trial court adopted the State’s response to

McDonald’s Rule 3.850 claim concerning the serological witnesses:

The defendant claims that trial counsel was ineffective for failing to

call serological or DNA witnesses during the defense case. At trial, the

State called Lynn Steele (TT. 81-94). Ms. Steele testified regarding an

examination she conducted of the victim the day after the defendant

committed the charged offenses. Ms. Steele testified that she did not

know whether she took oral swabs from the victim because her report was

marked “unknown” next to oral copulation (TT. 90). Ms. Steele further

testified that

“[t]o the best of my knowledge, I did not swab the mouth

because I was not told that there was a possibility of any oral

copulation. I wrote “unknown” on the sheet. I was told that

there was ejaculation, so if there was ejaculation on any part

of the body, I may have swabbed that area.”

(TT. 92-93). Ms. Steele opined that she would not expect to find semen

or public [sic] hairs in the mouth on the day following the assault,

especially if the victim had drank or brushed her teeth. (TT. 93-94).

Investigator Robbie Maxwell of the Gadsden County Sheriff’s Office

also testified regarding the subject of DNA (TT. 264-279). Investigator

Maxwell testified that he sent the victim’s clothing to the Florida

Department of Law Enforcement (FDLE) crime lab for analysis and that

there was no semen found on any of the clothing (TT. 274). Investigator

Maxwell further testified that the only DNA found on the victim’s

underwear was from a female donor, but the lab could not match it

to the victim because they did not have a specimen from the victim to

compare it to (TT. 274).

The defendant asserts that trial counsel should have called 

Dr. Kessis and Dr. Krane as witnesses. According to defendant, these

doctors could have testified that it was scientifically impossible for the

alleged ejaculation to have occurred. The doctors could have shown that

the allegations confirmed by CPT were false, could have testified as to the

amount of DNA that need be present for testing to be accomplished, and

Case No. 4:10cv428-RH/CAS
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could have testified how long DNA can remain on specific items before it

becomes unviable. The defendant further asserts that the two doctors

were available to testify at trial.

Initially, it bears noting that trial counsel did make use of 

Ms. Steele’s medical report and the results of the FDLE DNA analysis

despite the defendant’s argument to the contrary. Trial counsel could not

admit Ms. Steele’s report into evidence, and thus questioned her about it

on cross-examination (TT. 88-93). Likewise, trial counsel could not have

admitted the FDLE DNA analysis report into evidence, but Investigator

Maxwell testified to its contents on cross-examination. (TT. 272-275).

There were no allegations at trial that the defendant had ejaculated

on the victim or her clothing. Ms. Steele testified that she only would have

swabbed areas if she thought there had been ejaculation. Investigator

Maxwell testified that no semen or DNA belonging to the defendant was

discovered on the victim’s clothing. The doctors, even if called to testify,

would not have added anything of substance that would have refuted this

testimony or clarified it in any way. Even assuming that trial counsel was

ineffective for not calling these two doctors, the defendant cannot show

that the outcome of the trial would have been different absent this

deficient performance.

Doc. 25 Ex. OO at 89-90. The state post-conviction trial court further found with

respect to Dr. Kessis and Dr. Krane that, similar to the situation with the medical

witnesses regarding lack of penetration, the testimony regarding impossibility of

ejaculation was irrelevant because there was no testimony that McDonald ejaculated. 

Id. Ex. SS at 333.

Psychological Witnesses

Third, concerning the psychological witnesses, the State’s response, adopted by

the post-conviction trial court, provided:

The defendant claims that trial counsel was also ineffective for

failing to call psychological witnesses during the defense case. At trial,

the State called Kimberly Ellis from the Child Protection Team to testify

Case No. 4:10cv428-RH/CAS
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regarding her forensic interview of the victim (TT. 128-178). A video of

the forensic interview was published to the jury. (TT. 131-162).

The defendant asserts that trial counsel should have called 

Dr. McGowan and Dr. Crum as witnesses. According to the defendant,

these doctors could have been called to testify as to the unreliability,

manipulation, and improper influence Ms. Ellis committed during the

interview. The defendant suggests that Ms. Ellis conducted the

interview in such a way that the victim answered the way she thought 

Ms. Ellis wanted her to answer rather than presenting what truly

happened. The defendant also claims these witnesses could have

testified to the presence and effects of Child Sexual Assault

Accommodation Syndrome (CSAAS).

The two doctors could not have testified to CSAAS because it is

inadmissible in Florida. Testimony regarding CSAAS cannot meet the

Frye test for reliability because it had not been proven by a

preponderance of scientific evidence to be generally accepted by a

majority of experts in psychology. See Hadden v. State, 690 So. 2d 573

(Fla. 1997).

The defendant fails to support his conclusion of improper conduct

by Ms. Ellis with record cites as to where in the interview Ms. Ellis

manipulated or improperly influenced the victim. While Ms. Ellis testified

on cross-examination that she may have asked similar questions

repeatedly, she testified she did so because children may be able to

understand the question differently if it is phrased differently (TT. 166,

168). There is also no record evidence that the victim’s testimony

materially changed after her interview with Ms. Ellis. The victim’s initial

disclosure to Ms. Davis, her disclosure to her mother, her disclosure to

Ms. Ellis, and her trial testimony are fairly consistent (TT. 105-106, 132-

162, 184-187, 239-241).

Trial counsel did mention Ms. Ellis in his closing argument. Trial

court [sic] stated “[t]here are things that the defense and I believe

occurred on that tape as far as questions and repeated questions and

attempting to get the child to respond in a manner, but I leave that up to

your recollection” (TT. 297). Trial counsel cannot be deemed ineffective

simply because the jury chose not to accept trial counsel’s argument that

Ms. Ellis’s interview was improper.

The defendant’s reference to the victim’s testimony that her mother

and Ms. Davis discussed the case with her, and the fact that it may

Case No. 4:10cv428-RH/CAS
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conflict with what other witnesses testified is irrelevant to the issue of how

these psychologists’ testimony could have affected the outcome of the

trial.

Even assuming the defendant has established deficient

performance on the part of trial counsel, he has not established that the

outcome of the trial would have been affected by this deficiency.

Id. Ex. OO at 91-92. The court made additional findings:

[A]s to psychologists, Drs. McGowan and Dr. Crum, such testimony would

have been disallowed for the reasons cited by the State in its Response.

Assuming they would have made general even [sic] general observations,

this was all within the common sense of the jury. Defense counsel

competently argued this. It is not IAC to say counsel “could have done

more.” This is particularly true of expert opinion testimony as contrasted

with testimony of fact witnesses. The tape itself was not out of the

ordinary for such a case. This Court has never in 25 years had an

attorney seek to present an expert on coaching. Nothing in this particular

record made this uniquely required or advisable regarding the CPT

interview in this case. On this matter, counsel was well within standards

of practice. (Jury tr. 132-162).

Id. Ex. SS at 333.

McDonald’s Wife

Fourth, concerning McDonald’s wife, S.M., the State’s response, adopted by the

post-conviction trial court, provided:

The defendant claims that trial counsel was ineffective for failing to

call the defendant’s wife, [S.M.], during the defense case. At trial, the

defense did not present any witnesses.

The defendant asserts that trial counsel should have called [S.M.]

as a witness to testify to contact between the victim and [D.P.]. The

defendant speculates that [S.M.] could have testified to pretrial influence

[D.P.] placed on the victim, and episodes of witness tampering

perpetrated by [D.P.]. The defendant further speculates that [S.M.]’s

testimony at trial would have led to the exclusion of [D.P.’s] testimony, Ms.

Davis’s testimony, and the victim’s testimony. The defendant theorizes

that the testimony would have been excluded as tainted and unreliable.

Case No. 4:10cv428-RH/CAS
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The defendant asserts that the State would have been left with only the

CPT video as evidence, and that the video, standing alone, would have

been insufficient to sustain a conviction. The defendant also asserts that

[S.M.] was available and willing to testify at trial on the defendant’s behalf.

The defendant’s assertions in this subclaim are speculative and

conclusory at best. The defendant does not state with specificity what

pretrial influence and witness tampering were committed by [D.P.]. He

also fails to establish how this influence and witness tampering altered

testimony presented at trial. The defendant also fails to mention whether

[S.M.] even observed this alleged pretrial influence and witness

tampering. Interestingly, he also fails to mention that [S.M.] was

responsible for turning the adult video over to law enforcement officers

(TT. 270).

Furthermore, [S.M.] could not have testified to statements she

overheard the victim or [D.P.] make. This testimony would have been

excluded as hearsay. [S.M.]’s testimony also could not have been

admitted under the prior inconsistent statement exception to the hearsay

rule because its admission would not have been to impeach the testimony

of either the victim or [D.P.].

Even assuming [S.M.] was able to testify, her proposed testimony

would not have had the outcome envisioned by the defendant. [S.M.]

would have been the last witness to testify, and would testify after the

State had rested its case-in-chief. [S.M.]’s testimony therefore could not

and would not have led to the exclusion of the testimony of [D.P.], Ms.

Davis, and the victim.

Lastly, trial counsel made a tactical decision not to present [S.M.]’s

testimony. Any minimal benefit of her testimony would have given was far

outweighed by trial counsel’s desire to maintain first and last closing

arguments. This trial occurred in the spring of 2004, several years before

the law changed giving the State first and last closing arguments.

The defendant has failed to establish that trial counsel was

ineffective for not calling [S.M.] at trial. As such, his motion should be

summarily denied as to this subclaim.

Ex. OO at 92-94.

Case No. 4:10cv428-RH/CAS
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These rulings, affirmed on appeal without opinion, are entitled to deference and

are supported by the record. Specifically, as Respondent explains, regarding Dr. Fay

and Dr. Wiley, the medical experts, there was no allegation that McDonald’s finger

penetrated the victim’s vagina and, therefore, none of the proposed testimony

McDonald points to was relevant. Doc. 25 at 87. Regarding the serological experts, 

Dr. Kessis and Dr.Krane, their proposed testimony was similarly not relevant because

there was no allegation or evidence that McDonald ejaculated. Id.; see, e.g., Black v.

Sec’y, Dep’t of Corr., No. 3:08cv928-J-12TEM, 2011 WL 4424452, at *18 (M.D. Fla.

Sept. 22, 2011) (rejecting, in report and recommendation, petitioner’s IAC claim for

failure to obtain medical witness and explaining “even if a medical expert had been

called to testify concerning penetration, the state did not have to prove the element of

penetration” and “[i]nstead, the state could simply put forth sufficient evidence to

support a conviction based on the union with the sexual organs of the victim”).

Regarding Dr. McGowan and Dr. Crum, as the state court determined, a large portion of

the proposed testimony concerned Child Sexual Abuse Accommodation Syndrome and

would not have been admissible under Florida law, which uses standard from Frye v.

United States, 293 F. 1013 (D.C. Cir. 1923), for novel scientific evidence. See Hadden

v. State, 690 So. 2d 573 (Fla. 1997) (holding that expert testimony concerning Child

Sexual Abuse Accommodation Syndrome does not pass Frye test and “consequently,

this evidence may not be used in a criminal prosecution for child abuse”). 

Concerning McDonald’s wife’s proposed testimony, as the post-conviction trial

court found, such may have been harmful to McDonald given that his wife had retrieved

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a pornographic tape and given it to the authorities. In addition, as the state court found,

if counsel had called McDonald’s wife, or any of these witnesses, the defense would

have lost the final closing. Given the lack of physical evidence in this case, as well as

the circumstances detailed above regarding the potential effect of each witness’s

testimony, such a trial strategy does not appear unreasonable. See, e.g., Parker v.

Sec’y, Fla. Dep’t of Corr., No. 3:09cv1203-J-34JRK, 2013 WL 104425, at *19 (M.D. Fla.

Jan. 9, 2013) (finding IAC claim concerning failure to call witness fails where, among

other things, “defense counsel was interested in securing the first and last closing

arguments pursuant to the law at the time of Parker’s trial”); Beasley v. State, 18 So. 3d

473, 491-92 (Fla. 2009) (“[T]rial counsel prepared for a trial in anticipation that Beasley

might choose not to testify. When Beasley declined to testify, the defense strategically

decided not to present a defense case-in-chief to avoid relinquishing the primacy and

recency effect in the closing argument ‘sandwich’ or, in other words, the benefits

inherent in giving both the first and last closing argument. This was a reasonable

defense strategy based on the procedural rules in force at the time of trial.”). That the

strategy did not prove successful does not mean counsel’s performance was

ineffective. See Zamora v. Dugger, 834 F.2d 956, 959 (11th Cir. 1987) (explaining that

trial counsel’s “tactical decision to employ an insanity defense may not have been

successful in retrospect, but Strickland v. Washington allows trial counsel great latitude

to conduct a defense”). 

Moreover, McDonald’s allegations appear insufficient on this claim as he has not

presented evidence of actual testimony or any sworn affidavits of alleged testimony of

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these witnesses. “[E]vidence about the testimony of a putative witness must generally

be presented in the form of actual testimony by the witness or an affidavit” and “[a]

defendant cannot simply state that the testimony would have been favorable; selfserving speculation will not sustain an ineffective assistance claim.” United States v.

Ashimi, 932 F.2d 643, 650 (7th Cir. 1991); see, e.g., Tucker v. Sec’y, Dep’t of Corr., No.

2:03cv470-FtM-4DNF, 2009 WL 890395, at *22 (M.D. Fla. Mar. 31, 2009); Jordan v.

McDonough, No. 6:06cv1446-Orl-19KRS, at *5 (M.D. Fla. Jan. 7, 2008). 

Finally, in his reply filed, McDonald points to the complaint he filed with The

Florida Bar concerning defense counsel, and the outcome of that proceeding, in

support of his IAC allegations in this ground. See Doc. 43-1 at 78. It does not appear

that McDonald made this particular argument in the state post-conviction proceedings in

connection with this claim. In his amended Rule 3.850 motion, McDonald did argue in

his “Conclusion” section that the letter from The Florida Bar concerning McDonald’s

formal complaint supported his IAC claims. See Doc. 25 Ex. NN at 40. He attached to

that motion the Notice of No Probable Cause and Letter of Advice from The Florida Bar

Grievance Committee. Id. at 73. The Notice, dated April 12, 2006, provides:

The grievance committee, comprised of both non-lawyer and lawyer

members, has found no probable cause in the referenced cause against

you and the complaint has been dismissed.

However, the committee wants to make it clear that its finding does not

indicate that it condones your conduct in this matter. While your conduct

in this instance did not warrant formal discipline, the committee believes

that it was not consistent with the high standards of our profession. The

committee hopes that this letter will make you more aware of your

obligation to uphold these professional standards, and that you will adjust

your conduct accordingly.

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The committee hopes that, as a result of this letter of advice, you will

either refrain from handling criminal defense cases of the significance

involved in the case of State vs. McDonald or will associate a lawyer of

established competence and experience as co-counsel.

This letter of advice does not constitute a disciplinary record against you

for any purpose, and it is not subject to appeal by you.

Id. It is not clear that the state post-conviction trial court considered this particular

argument, however, as it was not addressed in that court’s order; therefore, this

argument does not appear exhausted and is now procedurally barred. Further, even

considering the merits of the argument, it is not clear which particular conduct by

counsel formed the basis of the Notice. See id.; see also id. at 46-48 (letter dated

February 22, 2005, from defense counsel to The Florida Bar Assistant Discipline

Counsel); Doc. 41 Ex. TTT (The Florida Bar Inquiry/Complaint Form completed by

McDonald and dated November 21, 2004), Ex. UUU (letter dated January 2, 2004, from

defense counsel to The Florida Bar Chief Branch Discipline Counsel), Ex. VVV (letter

dated February 11, 2005, from The Florida Bar Chief Branch Discipline Counsel to

defense counsel). Further, the Notice indicates no probable cause was found, the

complaint was dismissed, counsel’s conduct did not warrant formal discipline, and

counsel’s disciplinary record was not affected. Doc. 25 Ex. NN at 73. Moreover,

findings or reports from a state disciplinary proceeding are not binding on

determinations of deficient performance in a federal habeas IAC claim. See generally

Roe v. Flores-Ortega, 528 U.S. 470, 479 (2000) (quoting and citing Strickland,

explaining “[p]revailing norms of practice as reflected in American Bar Association

standards and the like . . . are only guides” and “while States are free to impose

Case No. 4:10cv428-RH/CAS
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whatever specific rules they see fit to ensure that criminal defendants are well

represented, we have held that the Federal Constitution imposes one general

requirement: that counsel make objectively reasonable choices”).

Based on the foregoing, McDonald has failed to establish that the state court’s

determination is contrary to or an unreasonable application of United States Supreme

Court precedent. This ground should be denied. 

Ground 6: IAC – Failure to Impeach State’s Witnesses and 

Move to Exclude Their Testimony

In Ground 6, McDonald asserts his trial attorney failed to attack the inaccurate

and inconsistent impeachable testimony of the State’s witnesses, and failed to move to

disqualify or exclude their testimony for contradiction and unreliability. Doc. 1 at 12. 

McDonald states his only defense is his actual innocence, that the alleged offenses

never occurred and the allegations against him are not true. Id. The prejudice that

resulted due to trial counsel’s errors deprived McDonald of due process and a fair trial. 

Id. McDonald indicates he provided “voluminous examples of impeachable testimony,

to which counsel should have objected, in his 3.850 motion.” Id. McDonald asserts

counsel was also ineffective for failing to question T.W.’s competency to testify as

counsel failed to object to the trial court’s legally inadequate, summary, non-specific

findings of competency. Id. McDonald asserts trial counsel further erred when he was

given an opportunity to object to the showing of the CPT tape to the jury and counsel

actually supported showing it to the jury, contrary to any plausible trial strategy. Id. 

Case No. 4:10cv428-RH/CAS
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McDonald argues counsel’s failures caused him incalculable prejudice and, absent

such errors, the outcome of the trial may have been different. Id. at 12-13.

On the merits, Respondent asserts McDonald has not established trial counsel

was ineffective under Strickland, and cannot establish the state court’s ruling was

contrary to or an unreasonable application of U.S. Supreme Court precedent. Doc. 25

at 93-94. Respondent indicates the state post-conviction trial court adopted the State’s

response to this claim as presented in McDonald’s Rule 3.850 proceeding, and quotes

that response as well as the additional findings the state court made. Id. at 94-97. 

Respondent argues the record supports the state court’s determination, and McDonald

has shown neither deficient performance nor prejudice. Id. at 97.

In reply, McDonald adopts his argument from the state court proceedings. Doc.

43-1 at 34. McDonald argues trial counsel failed to object to, or counteract, “numerous

false statements by the state’s witnesses.” Id. at 37. The First DCA unreasonably

applied Strickland. Id. at 39. 

McDonald raised this as the fifth claim in his amended Rule 3.850 motion filed in

state court. See Doc. 25 Ex. NN at 26-35. As Respondent explains, in denying this

claim, the state post-conviction trial court adopted the State’s response, which stated:

In his fifth claim, the defendant asserts that trial counsel was

ineffective for failing to expose numerous inconsistencies in the testimony

of the State’s witnesses, and for subsequently failing to move to disqualify

or exclude their testimony.

The defendant spends a majority of this issue claiming that trial

counsel was ineffective for failing to question the victim’s competency,

and for failing to object to the trial court’s finding of competency. The

defendant quotes passages ad nauseum throughout the record in which

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he claims the victim was not clear or confused or presented inconsistent

testimony.

The victim was questioned by the court outside the presence of the

jury to determine her competency. (TT. 76-80). Trial counsel was given an

opportunity to cross-examine the victim and did so (TT. 79-80). The court

determined that the victim was competent to testify at trial (TT. 80). The

prosecutor also asked questions designed to further demonstrate the

victim’s competency at the beginning of his direct examination of the

victim (TT. 179-182).

Claims involving the victim’s competency should have been raised

on direct appeal. The defendant is attempting to litigate an issue that is

only cognizable on direct appeal by couching it in terms of ineffective

assistance of counsel. This portion of issue five should be summarily

denied.

While the defendant does an admirable job reading the entire trial

transcript and documents generated in this case to expose

inconsistencies, the exposed inconsistencies are largely immaterial and

irrelevant for impeachment purposes.

The defendant claims that trial counsel was ineffective for failing to

point out the inconsistencies in witness testimony regarding what the

victim said the defendant made her do. Ms. Davis testified that the victim

told her that the defendant made the victim go down on him by putting his

“privacy” in her mouth (TT. 239). The victim stated in the CPT video that

she referred to the defendant’s penis as his “thing” (TT. 158). [D.P.] also

testified that the victim told her that the defendant made her suck his

“thing” like a popsicle (TT. 106). The victim also marked on a diagram

what part of his body the defendant made her suck (TT. 187). While these

statements and actions are not exactly identical, they are consistent. The

defendant fails to realize that had trial counsel tried to impeach these

witnesses with these differences, it would have required the jury to hear

repeatedly that the defendant had the victim suck on his penis like a

popsicle. Trial counsel was not ineffective for failing to questions

about statements that were consistent, just not identical to one another.

The defendant next claims trial counsel was ineffective for [not]

pointing out a date inconsistency between Ms. Davis’s trial testimony and

a written statement she provided to the Gadsden County Sheriff’s Office.

In her written statement, Ms. Davis indicated that the victim told her about

an incident that happened between the victim and the defendant in May

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(Defendant’s exhibit D). At trial, Ms. Davis testified on cross-examination

that the defendant had done it in April (TT. 249). The victim testified prior

to Ms. Davis’s testimony that the defendant had only done this one time in

July (TT. 153). Again, the defendant has identified statements made by

Ms. Davis that do not exactly match up. However, they are not wholly

inconsistent, and even if deemed inconsistent, they are not inconsistent

regarding a material fact. Had trial counsel attempted to clarify with Ms.

Davis whether this prior incident had happened in April or May, he would

have drawn additional attention to the fact that the charged offenses were

not the first allegation of the defendant’s inappropriate conduct towards

the victim. Trial counsel did not want to dwell on this topic any more than

he had to once the cat was out of the bag (TT. 248-249). Trial counsel

also could not impeach the victim with this inconsistency because she had

already testified, and he could not recall her as a witness in the defense

case simply to impeach her. Lastly, and probably most importantly, trial

counsel did point out this inconsistency to the jury in his closing argument

(TT. 301-301).

The defendant next claims trial counsel was ineffective for failing to

impeach [D.P.] with a claimed inconsistency between her written

statement to law enforcement and her testimony at trial regarding her

meeting with Ms. Davis on July 10, 2003. In her written statement, [D.P.]

wrote that she had called Ms. Davis inquiring about her mail, and it was

this call that led to her finding out about the victim’s accusation

(Defendant’s exhibit F). At trial, [D.P.] testified that she got a call from Ms.

Davis (TT. 102). Ms. Davis also testified at trial that she called [D.P.] on

the telephone, not the other way around. (TT. 255-256). While [D.P.]’s two

statements are inconsistent with one another, the inconsistency does not

relate to a material fact. It is clear from both Ms. Davis’s written statement

and testimony, and [D.P.]’s written statement and testimony that the two

women spoke on the phone on July 10, 2003, and Ms. Davis requested

[D.P.] to come over to Ms. Davis’s house in order for Ms. Davis to tell

[D.P.] about the victim’s allegations. It would not have served any purpose

for trial counsel to have exposed this inconsistency, and his failure to do

so did not affect the outcome of the trial whatsoever. 

The defendant claims trial counsel was ineffective for failing to

impeach Ms. Davis and [D.P.] on the issue of whether they had spoken to

the victim about her proposed trial testimony. The defendant alleges that

trial counsel should have impeached the two women with the victim’s trial

testimony, in which she stated the women had spoken to her about her

testimony and told her what to say.

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At trial, [D.P.] was asked whether she had spoken to the victim

about the case since July 10, 2003. [D.P.] responded in the negative,

stating “I don’t talk to her about it” (TT. 107). Ms. Davis testified that she

had spoken to the victim the day before trial and had told her to speak up

(TT. 246). She further testified that she told the victim “[w]hatever they got

to ask you, you tell them the truth. Don’t hold it in you” (TT. 246-247). Ms.

Davis stated that she did not tell the victim what to say (TT. 247). On

cross-examination of the victim, trial counsel asked the victim if she had

spoken about this incident with her mother. The victim responded in the

affirmative (TT. 211). The victim also testified that she had traveled to

court today with [D.P.] and Ms. Davis and that they had told her about the

courtroom, to speak up, and talk loud (TT. 213). The victim responded

“yes” to several questions posed by trial counsel relating to whether the

women told her what to say, reminded her of what she said before, and

that they told her what happened between her and the defendant (TT.

213-214).

Trial counsel could not have impeached [D.P.] with the victim’s

testimony because [D.P.] had testified before the victim testified. Trial

counsel also could not have called [D.P.] in the defense case solely to

impeach her. Trial counsel cannot be deemed ineffective for failing to

impeach [D.P.]’s testimony with testimony that had not yet occurred. While

trial counsel did not impeach [D.P.]’s testimony, he did reference his

cross-examination of the victim on that issue in his closing argument.

Trial counsel told the jury that the victim said she had discussed the case

with her mom since July 10, 2003 (TT. 303).

Ms. Davis testified that she had spoken to the victim about coming

to court and testifying in this case. Her testimony and that of the victim are

consistent on that point. It is also apparent from the face of the record that

trial counsel exposed these inconsistencies that existed between Ms.

Davis’s testimony and the victim’s statements. Their appearance in the

record also supports the assertion that trial counsel did in fact put these

inconsistent statements before the jury. While trial counsel did not

specifically ask Ms. Davis questions about the inconsistencies, he did

point them out to the jury. In his second closing argument, trial counsel

told the jury that Ms. Davis’s testimony was “completely different” than

what the child had testified (TT. 324). He also questioned her credibility by

suggesting it was unusual for the first alleged incident of molestation to be

mentioned for the first time on the second day of trial. (TT. 324).

The defendant also points out several inconsistencies in the

victim’s trial testimony that trial counsel apparently did not elaborate on.

Case No. 4:10cv428-RH/CAS
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The defendant believes trial counsel should have seized on these

inconsistencies and apparently done more than he did with them. The

mere fact that they appear in the record is evidence that trial counsel

made sure these inconsistencies were put before the jury. Furthermore,

trial counsel mentioned the victim’s inconsistencies in closing argument:

The things I do want to point out, though, about the tape is

the inconsistencies as to what room, rooms, this alleged

incident might have occurred in. It started out there was a – 

in the bathroom, brushing her teeth; and then it went to her

brother’s room, and her brother’s room was mentioned

several times; and then it went to the living room; and then it

went the room where Mr. McDonald and his wife were

sleeping. And so the child was talking about several different

rooms, allover the pace [sic], and even Ms. Ellis stated in

her testimony that she could not ever really lock down the

room.

What the child was wearing wasn’t clear. At one point she

was in bed clothes, brushing her teeth, and the vitamin, and

then the next moment she’s in regular clothes. And while

we’re on clothing, it is the defense’s contention of what we

heard in the film was that at no time did the child say that

their [sic] clothes were removed. And I say that because you

were given diagrams and pictures, but there is no testimony

from the child concerning the – that neither she nor Mr.

McDonald, in her allegations, or what the State is asking you

to believe, or prove in this case, that they were ever naked.

(TT. 297-98).

Trial counsel did point out inconsistencies between each of the

State’s witnesses’ testimony. While some of the witnesses were not

pressed on the issue, trial counsel did mention these issues in his closing

arguments. He cannot be deemed ineffective simply because the jury

chose to believe the testimony presented by the State. Even assuming the

defendant has shown deficient performance, this claim fails because the

defendant has not shown but for this deficiency, the outcome of the trial

would have changed.

Case No. 4:10cv428-RH/CAS
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Doc. 25 Ex. OO at 94-99. The state post-conviction trial court adopted the State’s

response finding it “meticulously, fully, and accurately, addresses this ground.” Id. Ex.

SS at 333. 

These rulings, affirmed on appeal without opinion, are entitled to deference and

are supported by the trial transcript. See Doc. 25 Exs. B and C. Defense counsel drew

out, and pointed out in closing, discrepancies from the witnesses as to material

allegations, and did not perform deficiently. This ground should be denied. 

Ground 7: IAC – Failure to Object to Prosecutorial Misconduct

In Ground 7, McDonald asserts his attorney failed to object to misconduct by the

prosecutor. Doc. 1 at 13. McDonald asserts that, during closing arguments, the

prosecutor repeatedly commented on and vouched for the credibility of the State’s

witnesses, vilified McDonald, and knowingly and deliberately presented false and

misleading information to the jury. Id. McDonald indicates he included eleven (11)

examples of prohibited conduct by the prosecutor in his Rule 3.850 motion. Id. 

McDonald argues counsel should have objected to this misconduct and counsel’s

failure to do so resulted in a complete miscarriage of justice. Id. McDonald argues

that, if counsel had objected, the outcome of the trial may have been different. Id.

On the merits, Respondent asserts McDonald has not established trial counsel

was ineffective under Strickland, and cannot establish the state court’s ruling was

contrary to or an unreasonable application of U.S. Supreme Court precedent. Doc. 25

at 103-04, 107. Respondent indicates the state post-conviction trial court adopted the

State’s response to this claim as presented in McDonald’s Rule 3.850 proceeding, and

Case No. 4:10cv428-RH/CAS
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quotes that response. Id. at 104-06. Respondent argues the record supports the state

court’s determination, and only one comment was marginally questionable. Id. at 106-

07. None of the comments deprived McDonald of a fair trial, and McDonald had the

opportunity to rebut the prosecutor’s argument as he had the final closing. Id. at 107-

08. Respondent concludes McDonald is not entitled to relief on this ground. Id. at 108.

In reply, McDonald adopts his argument from the state proceedings. Doc. 43-1

at 39. He asserts the prosecutor’s comments were not fair comments and “took on

additional prejudicial significance” because of the circumstances of the case: T.W.’s

word against McDonald’s, with no corroborating evidence. Id. at 40-41. McDonald

argues the First DCA unreasonably applied Strickland. Id. at 43. 

McDonald raised this as the sixth claim in his amended Rule 3.850 motion filed

in state court. See Doc. 25 Ex. NN at 32-35. As Respondent explains, in denying this

claim, the state post-conviction trial court adopted the State’s response, which stated: 

In his sixth claim, the defendant asserts that trial counsel was

ineffective for failing to object to prosecutorial misconduct. The defendant

asserts the prosecutor committed misconduct by repeatedly making

comments vouching for the credibility of the State’s witnesses, and

knowingly presenting false information to the jury.

Essentially, the defendant argues that the prosecutor committed

misconduct by arguing to the jury in his closing argument that the victim’s

testimony was more credible and for giving reasons why the jury could

find her testimony to be credible. The prosecutor did make the comments

the defendant complains about in his closing argument (TT. 304-323).

None of the questioned prosecutorial comments rise to the level of

prosecutorial misconduct. The comments, when read in the context with

the remainder of the prosecutor’s closing argument, are either fair

responses to the issues raised by the defense in the initial closing

argument or are fair comments based on the evidence at trial. The

defendant attempts to suggest the prosecutor simply state

Case No. 4:10cv428-RH/CAS
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that the “defendant in this case is guilty,” thereby implying the prosecutor

gave his personal opinion to the jury. However, the context of that

statement is as follows:

The defendant in this case is guilty of the crimes with which he is

charged because he forced his four year old sister-in-law to suck his

penis like it was a popsicle and because he digitally molested her with

his fingers after spitting on them

(TT. 304-205). On the same page of the transcript, the prosecutor states

that “I expect that the evidence showed just what I said that it would” (TT.

305). The prosecutor’s comment on the defendant’s guilt is based on the

evidence at trial, not the prosecutor’s personal opinion.

The defendant also asserts that prosecutorial misconduct exists

because the record reflects at least four times when the prosecutor

mentioned the word “credibility” (TT. 316, 317, 320). The prosecutor

stated 

If she were lying or if she were put up to lying by her mother

because her mother doesn’t like the defendant, wouldn’t she

have been trying to convey a different demeanor, a different

affect, trying to please her mother? Yeah, yeah, he did it,

this is what he did to me. And she would have come across

in a much more forthright way than the way that she did. I

submit to you that her difficulty in testifying to these things

that she testified adds to her credibility. The fact that she

told the same story to Leshone Davis, to her mother, to

Kimberly Ellis at the Child Protection Team, and then to all

of us here in court adds to her credibility.

(TT. 316). The prosecutor later stated “[t]he fact that there are some slight

variations in the story adds to the credibility (TT. 317). The prosecutor

also stated

Now the defense want [sic] to formulate some sort of attack,

or make suggestions that, well, this means that she was

coached or this means she was influenced in her testimony.

Ladies and gentlemen, that’s her little four year old mind

trying to make sense of an unspeakable, depraved act.

That’s the kind of statement that would be, and in fact is,

etched upon the mind of a little girl when something like

what happened to [T.W.] happens. It’s no wonder she kept

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repeating it. That doesn’t detract from her credibility; it adds

to it.

(TT. 320). These are all fair comments on the evidence and are not

examples of improper vouching of the witness’s credibility. The

prosecutor’s simple mention of the word “credibility” is not per se

prosecutorial misconduct, nor should the court treat it as such.

The defendant also asserts that the prosecutor made knowingly

false statements to the jury. To support this claim, the defendant initially

mentions the prosecutor telling the jury that the victim had made a prior

uncharged accusation of abuse (TT. 309, 318). While the defendant is

correct that the victim stated that the abuse only happened once, Ms.

Davis testified to the victim telling her it had happened previously (TT.

249). The prosecutor’s comment in his closing argument is a fair comment

on Ms. Davis’s trial testimony.

The defendant next claims the prosecutor committed misconduct

by telling the jury that no penetration had occurred (TT. 307, 314). The

prosecutor actually told the jury it didn’t matter if penetration had occurred

because the law did not require penetration for the jury to convict the

defendant of Lewd or Lascivious Molestation. Even if the prosecutor’s

comments could be read to suggest that he told the jury no penetration

had occurred, there is ample record evidence to support such an

assertion (TT. 67, 106, 162, 164, 185, 240, State’s trial exhibit 4).

The defendant claims the prosecutor committed misconduct by

telling the jury that the defendant showed the victim an adult movie as a

“training tape” (TT. 318). Despite the defendant’s protestations to the

contrary, there was record evidence that the victim had been shown an

adult video (TT. 105, 151, 158-160, 240). Investigator Maxwell also

testified that he seized an adult movie entitled “Who’s Your Daddy?” from

the house in which the alleged abuse took place (TT. 267). The

prosecutor’s reference to this adult video being a training tape is a fair

comment on the evidence presented at trial, specifically the testimony that

the defendant showed the victim a video, the title of the video, and the

testimony that the defendant made the victim suck his penis like a

popsicle.

The defendant also claims trial counsel was ineffective for failing to

object to the prosecutor’s crowning example of misconduct: calling the

alleged offense an “unspeakable and depraved act” (TT. 320). The

defendant asserts that trial counsel should have objected to this example

Case No. 4:10cv428-RH/CAS
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of misconduct, and that it prevented the jury from focusing on the

emotional aspect of the case instead of the facts presented at trial. This

comment was the only comment made during the prosecutor’s closing

argument that arguably could be thought of to invoke emotion. The court

would not have declared a mistrial had trial counsel objected to this

singular comment. Furthermore, the comment did not materially

contribute to the conviction, deprive the defendant of a fair and impartial

trial, or be so inflammatory as to require a new trial. Spencer v. State, 645

So.2d 377 (Fla. 1994); Lopez v. State, 555 So.2d 1298 (Fla. 3d DCA

1990).

None of the comments referenced by the defendant are examples

of improper prosecutorial misconduct. Thus, trial counsel cannot be

deemed ineffective for failing to object to otherwise admissible [sic]

comments made by the prosecutor. The defendant has failed to show

both deficient performance and that there exists a reasonable likelihood

that but for this alleged deficient performance, the trial’s outcome would

have been different.

Doc. 25 Ex. OO at 99-103. The state post-conviction trial court adopted the State’s

response on this ground finding it “fully and accurately addresses all the matters

raised.” Id. Ex. SS at 333. 

The state court’s rulings were affirmed on appeal and are entitled to deference. 

In Florida, both the State and the defense have wide latitude in closing arguments. See

Ford v. State, 802 So. 2d 1121, 1129 (Fla. 2001). A review of this record does not

indicate the prosecutor’s comments, even if questionable, rose to such a level as to

result in an unfair trial or deprivation of due process. See Darden v. Wainwright, 477

U.S. 168, 181 (1986) (finding that prosecutor’s comments “undoubtedly were improper,”

but that was not enough for habeas corpus relief? as the question was whether the

comments “so infected the trial with unfairness as to make the resulting conviction a

denial of due process”). McDonald has not shown that counsel was deficient for failing

Case No. 4:10cv428-RH/CAS
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to object to the prosecutor’s statements or that, absent those statements, the outcome

of the trial would have been different. See, e.g., Land, 2008 WL 816707 at *19. 

McDonald has failed to establish that the state court’s determination is contrary to or an

unreasonable application of Supreme Court precedent. This ground should be denied. 

Ground 8: IAC – Cumulative Effect of Trial Counsel’s Errors

In Ground 8, McDonald asserts the cumulative effect of trial counsel’s errors,

together with counsel’s failure to move for JOA, deprived him of effective assistance of

counsel. Doc. 1 at 14. He asserts counsel’s errors, presented in the other grounds,

deprived him of his rights to due process, fair notice, fair trial, equal protection, and

effective assistance of counsel. Id. at 15. 

Respondent argues, as to the merits of this ground, that McDonald has not

established trial counsel was ineffective, and cannot establish the state court’s ruling on

this ground was contrary to or an unreasonable application of controlling U.S. Supreme

Court precedent. Doc. 25 at 113. Respondent points out that there is no such federal

constitutional claim as a claim of cumulative error based on ineffective assistance and,

therefore, the state court cannot have acted contrary to any U.S. Supreme Court

authority. Id. at 113-14. Regarding the JOA motion, Respondent asserts no such

motion would have been granted because T.W. testified McDonald put his penis in her

mouth and rubbed her vagina with his finger; counsel is not ineffective for failing to

make a motion that has no possibility of being granted. Id. at 116. 

In reply, McDonald adopts his argument from the state court proceedings. Doc.

43-1 at 44. McDonald argues “[a] cumulative error claim does not necessarily

Case No. 4:10cv428-RH/CAS
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presuppose that all errors complained of are individually harmless, only that, in addition

to specific analyses of the several errors, the court examines the effect of all the errors

together,” and further “[t]his doctrine is explicitly required by the Supreme Court’s

holding in Strickland.” Id. As to the JOA, defense counsel did not make a JOA motion. 

Id. at 46-47. McDonald argues that “[b]ecause T.W. bore none of the medical signs of

having been abused, which the allegations would have reasonably required, and no

serological evidence was found on her clothing, the uncorroborated and unreliable

testimony of T.W. is insufficient as a matter of law to overcome Petitioner’s presumption

of innocence and sustain his wrongful conviction.” Id. at 48. McDonald concludes,

therefore, the First DCA unreasonably applied Strickland. Id. 

McDonald raised this as his seventh claim in his amended Rule 3.850 motion. 

See Doc. 25 Ex. NN at 35-41. The state post-conviction trial court denied this ground

because it found the other grounds lacked merit. Id. Ex. SS at 333.

This Court should also deny this ground. As to the JOA argument, defense

counsel did make a motion for JOA:

MR. EAGEN: Your Honor, at this time we’d make a motion for dismissal

based on a lack of or insufficient evidence to proceed to the jury. We’d

like to base that motion on although the jury has heard testimony

concerning the allegations in this matter, there is no evidence before the

Court of actual physical acts done or as far as the – there is testimony

concerning the physical act of spitting on the finger, but thee is no

testimony or – or evidence to suggest either physical – actual evidence or

eve testimonial evidence concerning the actual act of oral copulation. The

only testimony that the jury had heard at this point is that the child

repeatedly said, and through the hearsay statement, that “He asked me to

suck it like a popsicle.” And based upon that, we would seek a motion for

judgment of acquittal. 

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Doc. 25 Ex. C at 281. Although McDonald evidently believes defense counsel either

did not make a JOA motion or could have made a better argument, defense counsel’s

performance was not deficient because sufficient evidence was presented to the jury to

support the necessary elements of each count. See id. Ex. B at 105-06, 139-50, 158,

191; Ex. C at 239-41; §§ 794.011(2)(a) (capital sexual battery) and 800.04(5)(b) (lewd

or lascivious molestation), Fla. Stat. (2003). 

As to the argument concerning cumulative error, the Eleventh Circuit has

rejected such an argument in a § 2254 proceeding. See Forrest v. Fla. Dep’t of Corr.,

342 F. App’x 560, 565 (11th Cir. 2009) (explaining that “[t]he Supreme Court has not

directly addressed the applicability of the cumulative error doctrine in the context of an

ineffective assistance of counsel claim” but “the Supreme Court has held, in the context

of an ineffective assistance of counsel claim, that ‘there is generally no basis for finding

a Sixth Amendment violation unless the accused can show how specific errors of

counsel undermined the reliability of the finding of guilt” (quoting United States v.

Cronic, 466 U.S. 648, 659 n.26 (1984))). Moreover, because each of McDonald’s

individual claims fail, the cumulative error claim likewise fails. 

As demonstrated by the above analysis, the state post-conviction trial court’s

adjudication of McDonald’s claims did not involve an unreasonable application of,

clearly established federal law, nor was it based on an unreasonable determination of

the facts in light of the evidence presented. This ground should be denied.

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Conclusion

Based on the foregoing, Petitioner McDonald is not entitled to federal habeas

relief. The § 2254 petition (Doc. 1) should be denied. 

Certificate of Appealability

Rule 11(a) of the Rules Governing Section 2254 Cases in the United States

District Courts provides that “[t]he district court must issue or deny a certificate of

appealability when it enters a final order adverse to the applicant,” and if a certificate is

issued “the court must state the specific issue or issues that satisfy the showing

required by 28 U.S.C. § 2253(c)(2).” Rule 11(b) provides that a timely notice of appeal

must still be filed, even if the court issues a certificate of appealability. Petitioner fails to

make a substantial showing of the denial of a constitutional right. 28 U.S.C.

§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (explaining substantial

showing) (citation omitted). Therefore, the Court should deny a certificate of

appealability in its final order.

The second sentence of Rule 11(a) provides: “Before entering the final order, the

court may direct the parties to submit arguments on whether a certificate should issue.” 

The parties shall make any argument as to whether a certificate should issue by

objections to this report and recommendation.

Leave to appeal in forma pauperis should also be denied. See Fed. R. App. P.

24(a)(3)(A) (providing that before or after notice of appeal is filed, court may certify

appeal is not in good faith or party is not otherwise entitled to appeal in forma pauperis).

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Page 100 of 100

Recommendation

It is therefore respectfully RECOMMENDED that the Court DENY Petitioner's

§ 2254 petition (Doc. 1). It is further RECOMMENDED that a certificate of appealability

be DENIED and that leave to appeal in forma pauperis be DENIED.

IN CHAMBERS at Tallahassee, Florida, on August 19, 2013.

S/ Charles A. Stampelos 

CHARLES A. STAMPELOS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within fourteen (14) days after being served with a copy of this

report and recommendation. A party may respond to another party's objections

within fourteen (14) days after being served with a copy thereof. Failure to file

specific objections limits the scope of review of proposed factual findings and

recommendations.

Case No. 4:10cv428-RH/CAS