Adalberto Ramos v. Attorney General, State of Florida

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10006
Non-Argument Calendar
____________________
ADALBERTO RAMOS,
Petitioner-Appellant,
versus
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:19-cv-62456-PCH
____________________
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2 Opinion of the Court 21-10006
Before ROSENBAUM, LUCK, and BRASHER, Circuit Judges.
PER CURIAM:
Adalberto Ramos, proceeding pro se, appeals the district
court’s denial of his petition for habeas relief under 28 U.S.C. § 2254following his convictions for sexual battery against a minor. We
granted a certificate of appealability on the issues of whether Ra-
mos’s trial counsel provided ineffective assistance for failing to call
the victim’s mother to testify and for failing to adequately impeach
the victim with her deposition testimony. Upon careful considera-
tion, we affirm.
I.
After Ramos’s stepdaughter accused him of sexually abusing
her, the State of Florida charged him with four counts of sexual
battery upon a child, a count of indecent assault, and a count of
lewd or lascivious molestation. At trial, the victim and her sisters
testified about Ramos’s prolonged abuse, including forcing her to
participate in oral, digital, and anal sex as a child. The victim also
testified that this abuse caused her to bleed when she used the re-
stroom.
The victim’s mother had previously given a deposition de-
scribing how the victim had told her about Ramos’s inappropriate
touching. But that deposition also stated that the victim denied that
Ramos had “put something in” her. And it stated that, when the
mother physically checked the victim and washed her clothes, she
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21-10006 Opinion of the Court 3
did not see signs of bleeding. Neither Ramos nor the government
called the victim’s mother to testify at trial.
The jury found Ramos guilty on all counts, and Ramos was
given multiple concurrent sentences of life in prison.
After undergoing the direct appeal process, Ramos filed a pe-
tition for postconviction relief under Florida Rule of Criminal Pro-
cedure 3.850. That petition asserted various claims for relief, two
of which are relevant here. First, Ramos argued that his counsel
was ineffective for failing to call the victim’s mother as a witness
because she would have contradicted some of the victim’s testi-
mony. Second, he argued that his counsel was ineffective for failing
to impeach the victim with her deposition testimony that her
mother did not physically examine her, that she did not tell her
mother about any penetration by Ramos, and that she was experi-
encing bleeding when she reported the abuse.
After holding an evidentiary hearing, the postconviction
court denied both claims. Regarding the first claim, it reasoned that
Ramos had failed to establish the substance of the mother’s testi-
mony that was not offered, or how it would have affected the out-
come of the trial. And it noted that the decision not to call a witness
is strategic in nature. As to the second claim, the court reasoned
that Ramos presented insufficient evidence at the evidentiary hear-
ing. Ramos appealed, and Florida’s Fourth District Court of Appeal
affirmed the denial of the relevant claims without comment. Ra-
mos v. State, 264 So. 3d 180 (Fla. Dist. Ct. App. 2019).
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4 Opinion of the Court 21-10006
Ramos then filed a Section 2254 petition in the Southern Dis-
trict of Florida, reasserting the claims he raised before the state
postconviction court. The district court denied the petition. It rea-
soned that Ramos’s trial counsel made a reasonable strategic deci-
sion not to call the victim’s mother, and that he could only specu-
late as to the substance of her testimony because she did not testify
at the evidentiary hearing. It also determined that the victim’s tes-
timony at trial was consistent with her deposition, so Ramos could
not establish that the failure to impeach her with her deposition
was ineffective assistance.
We later granted Ramos a certificate of appealability on the
two claims discussed above. Ramos now appeals.
II.
“[W]e review the district court’s denial of [a] § 2254 peti-
tion de novo, but we ‘owe deference to the final state habeas judg-
ment.’” Reed v. Sec’y, Fla. Dep’t of Corr., 593 F.3d 1217, 1239 (11th
Cir. 2010) (quoting Peterka v. McNeil, 532 F.3d 1199, 1200 (11th
Cir. 2008)). When the final state court decision does not contain
reasoning for the denial of relief, we look to the last related state
court decision that provides rationale and “presume that the unex-
plained decision adopted the same reasoning.” Wilson v. Sellers,
138 S. Ct. 1188, 1192 (2018).
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21-10006 Opinion of the Court 5
III.
A federal court cannot grant habeas relief on a claim that was
“adjudicated on the merits in State court proceedings” unless the
state court’s decision was (1) “contrary to, or involved an unrea-
sonable application of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States” or (2) “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). For
purposes of Section 2254(d)(1), “clearly established Federal law” re-
fers only to the legal principles embodied in the holdings of the Su-
preme Court. Thaler v. Haynes, 559 U.S. 43, 47 (2010).
The Sixth Amendment provides criminal defendants the
right to effective assistance of counsel. Strickland v. Washington,
466 U.S. 668, 684-86 (1984). To succeed on an ineffective assistance
of counsel claim, a petitioner must show that (1) his counsel’s per-
formance was deficient and (2) the deficient performance preju-
diced his defense. Id. at 687.
Counsel’s performance is deficient where it “fell below an
objective standard of reasonableness.” Id. at 688. A court consider-
ing an ineffective assistance claim “must indulge a strong presump-
tion that counsel’s conduct falls within the wide range of reasona-
ble professional assistance.” Id. at 689. Thus, our analysis under
Section 2254 is “doubly deferential” where the state court decided
that counsel performed adequately. Dunn v. Reeves, 141 S. Ct.
2405, 2410 (2021) (quoting Burt v. Titlow, 571 U.S. 12, 15 (2013)).
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6 Opinion of the Court 21-10006
In other words, we may grant relief only if “every ‘fairminded ju-
rist’ would agree that every reasonable lawyer would have made a
different decision.” Id. at 2411 (cleaned up) (quoting Harrington v.
Richter, 562 U.S. 86, 101 (2011)).
To prove the prejudice element under Strickland, the de-
fendant must show “a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different.” 466 U.S. at 694.
Here, Ramos maintains that the state court unreasonably
applied Strickland by rejecting two of his claims for ineffective as-
sistance of counsel. As to the first claim, he argues that his trial
counsel was ineffective for failing to call the victim’s mother as a
defense witness. He specifically asserts that the mother would have
testified that she heard the victim deny that Ramos sexually abused
her.
Regarding the second claim, Ramos argues that his trial
counsel was ineffective for failing to impeach the victim with her
deposition testimony that her mother never physically examined
her for signs of abuse. He states that trial counsel needed only ask
her one question: “Are you sure you did not tell your mother about
the allegations made against Mr. Ramos?”
We discuss each of these arguments in turn.
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21-10006 Opinion of the Court 7
A.
The state court reasonably applied Strickland as to Ramos’s
claim regarding his trial counsel’s decision not to call the victim’s
mother as a defense witness. Counsel’s decision as to which wit-
nesses, if any, to call at trial “is the epitome of a strategic decision,
and it is one that we will seldom, if ever, second guess.” Conklin v.
Schofield, 366 F.3d 1191, 1204 (11th Cir. 2004) (quoting Waters v.
Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995)). “Even if counsel’s
decision appears to have been unwise in retrospect, the decision
will be held to have been ineffective assistance only if it was ‘so
patently unreasonable that no competent attorney would have
chosen it.’” Dingle v. Sec’y, Dep’t of Corr., 480 F.3d 1092, 1099
(11th Cir. 2007) (quoting Adams v. Wainwright, 709 F.2d 1443,
1445 (11th Cir. 1983)).
On this record, we cannot say the state court unreasonably
determined that Ramos’s counsel was not ineffective. Trial counsel
testified that he chose not to call the victim’s mother because he
did not believe her testimony would be helpful to Ramos’s defense.
We owe substantial deference to that strategic determination, and
it is supported by the record. Contrary to Ramos’s assertions on
appeal, the mother’s deposition corroborated some parts of the vic-
tim’s testimony, such as her underlying assertion that Ramos
touched her inappropriately. Moreover, because the victim’s
mother did not testify at the evidentiary hearing, Ramos has not
established that the mother’s testimony would have been overall
favorable to his defense, much less that there was a reasonable
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8 Opinion of the Court 21-10006
probability of it changing the outcome of the trial. So the district
court correctly denied the Section 2254 petition as to this claim.
B.
The state court also applied Strickland reasonably to Ra-
mos’s claim concerning his trial counsel’s failure to impeach the
victim with her deposition testimony. Failure to impeach a key
prosecution witness with earlier testimony may amount to ineffec-
tive assistance when that testimony was “much more favorable to
the defendant.” Fugate v. Head, 261 F.3d 1206, 1219 (11th Cir.
2001).
The record supports the state court’s conclusion that Ra-
mos’s counsel was not ineffective. Ramos’s trial counsel cross-ex-
amined the victim—he questioned her thoroughly and reviewed
her deposition transcript both before and after he conducted the
cross-examination. Afterward, both he and Ramos agreed that he
had covered all the necessary questions. Additionally, the victim
testified in her deposition and at trial that her mother never exam-
ined her after she told her mother about the abuse. The victim also
testified at trial that she told her mother about the inappropriate
touching, which answers the sole question that Ramos suggests his
trial counsel should have asked—whether she told her mother
about the allegations against him. So the district court correctly de-
nied Ramos’s Section 2254 petition.
AFFIRMED.