Eleazer Hernandez-Perez v. Florida Department of Corrections, Ricky Dixon, Secretary of FDOC

                UNITED STATES DISTRICT COURT                            
               SOUTHERN DISTRICT OF FLORIDA                             

                 CASE NO: 9:25-cv-80389-DAMIAN                          

ELEAZER HERNANDEZ-PEREZ,                                                  

   Petitioner,                                                          

v.                                                                        

FLORIDA DEPARTMENT                                                        
OF CORRECTIONS, Ricky Dixon,                                              
Secretary of FDOC,                                                        

   Respondent.                                                          
                           /                                            

        ORDER ON PETITION FOR WRIT OF HABEAS CORPUS                     

   THIS CAUSE came before the Court upon the pro se Petition for Writ of Habeas Corpus 
(“Petition”), filed pursuant to 28 U.S.C. § 2254 by Eleazer Hernandez-Perez (“Hernandez-
Perez”  or  “Petitioner”).  [ECF  No.  1].  In  the  Petition,  Hernandez-Perez  attacks  the 
constitutionality of his convictions and sentences entered in the Fifteenth Judicial Circuit in 
and for Palm Beach County, Florida, in State of Florida v. Hernandez-Perez, No. 50-2015-CF-
004248 (Fla. 15th Cir. Ct. 2015). The Florida Department of Corrections (“Respondent”) 
filed a Response (“Response”) [ECF No. 17] to the Petition and the Court’s Order to Show 
Cause  [ECF  No.  6],  along  with  a  supporting  appendix  [ECF  No.  18]  and  state  court 
transcripts [ECF No. 19, Trial Transcripts, hereinafter, T. at ___]. Hernandez-Perez then filed 
his Traverse to the State’s Response (“Traverse”). [ECF No. 22].  The Petition is now ripe for 
review.                                                                   
   THE  COURT  has  considered  the  Petition  and  the  above-referenced  filings,  the 
pertinent portions of the record, and relevant legal authority and is otherwise fully advised. 
For the reasons that follow, the Petition is denied.                      
                     I.   BACKGROUND                                    

   A.  The Charges.                                                     
   On January 25, 2016, the State charged Hernandez-Perez by a second amended 
information with three counts of sexual battery on a person less than twelve years of age 
(Counts 1 through 3). [ECF No. 18-1 at 2–3].                              
   B.  Trial And Sentencing.                                            
   Hernandez-Perez proceeded to trial after rejecting the State’s plea deal. See Petition 
[ECF No. 1 at 16]. On October 4, 2019, the jury found Hernandez-Perez guilty on Counts I 
and III, and guilty of battery as to Count II, a lesser included offense. [ECF No. 18-1 at 5–6]. 
The trial court sentenced Hernandez-Perez to concurrent life sentences in prison without 

parole and to time-served on Count II.1 Id. at 12–17. The court also designated Hernandez-
Perez as a sexual predator. Id. at 19.                                    
   C.  Direct Appeal And Collateral Proceedings.                        
   In 2020, Hernandez-Perez filed a direct appeal in Florida’s Fourth District Court of 
Appeal (“Fourth DCA”). [ECF No. 18-1 at 28–45]. On appeal, he raised two trial court errors: 
(1) the trial court reversibly erred by failing to instruct the jury that sexual battery could not 
be accomplished by penile contact with the leg or stomach, where the jury asked that specific 
question after being instructed on the elements of sexual battery; and (2) the trial court abused 


1 The Court entered a corrected sentencing order as to Count II and allotted Petitioner 1,613 
days as credit for time incarcerated before imposition of the sentence. [ECF No. 18-1 at 116]. 
its discretion by failing to hold a Daubert2/Fla. Stat. § 90.702 hearing concerning the State’s 
expert witness. Id. at 39–45. On March 31, 2021, the Fourth DCA affirmed in Hernandez-Perez 
v. State, 320 So. 3d 766 (Fla. 4th DCA 2021) (per curiam). On the first issue, the court 
reasoned, “[T]he trial court has discretion in answering a jury question, and it may answer a 

question directly or refer jurors to standard instructions.” Id. at 766 (citing Perriman v. State, 
731 So. 2d 1243, 1246–47 (Fla. 1999)). On the second issue, the court found that Hernandez-
Perez failed to preserve the Daubert inquiry. Hernandez-Perez, 320 So. 3d at 766. The Fourth 
DCA issued its mandate on June 4, 2021. [ECF No. 18-1 at 96].             
   Hernandez-Perez next filed a petition for belated discretionary review of the Fourth 
DCA’s holding before the Florida Supreme Court. See id. at 98–100. The Florida Supreme 
Court declined to accept jurisdiction and denied the petition. Id. at 102. Hernandez-Perez 
returned to the state trial court on January 25, 2022, with a motion to correct jail credit, which 
the court granted in part and entered a corrected sentencing order on April 11, 2022, nunc pro 

tunc. Id. at 105–16. He then filed another appeal in the Fourth DCA alleging ineffective 
assistance of appellate counsel in the previous appeal on May 9, 2022. Id. at 118–38. In that 
brief, and of relevance here, he argued that his appellate lawyer failed to raise the issue of the 
trial judge denying his motion to disqualify, despite the judge’s alleged hostility toward his 
counsel. Id. at 129.  The Fourth DCA affirmed without an opinion. Id. at 140. 
   On April 20, 2023, Hernandez-Perez filed his first motion for post-conviction relief in 
the state trial court under Florida Rule of Criminal Procedure 3.850. Id. at 149–63. In that 
motion, he raised three grounds of ineffective assistance of counsel. See id. Hernandez-Perez 
then filed a motion to amend, which the court granted. Id. 169–75.        


2 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).              
   In that amended motion, he raised four grounds for relief:           
   (1) trial counsel was ineffective for declining the State’s plea offer and proceeding to 
     trial, which violated the Florida and U.S. constitutions;          
   (2) trial counsel was ineffective for failing to file a motion for a new trial after the jury 

     found him guilty, in contradiction to the weight of the evidence, and the trial court 
     provided an erroneous jury instruction;                            
   (3) trial counsel was ineffective for failing to move for appointment of a medical expert 
     to challenge the State’s claims; and                               
   (4) trial counsel was ineffective by failing to properly investigate and present an alibi 
     witness to testify at trial.                                       
Id. 176–94. The trial court denied the motion on June 14, 2024. Id. at 244. Petitioner appealed 
the ruling, which the Fourth DCA affirmed per curiam, following which it and issued the 
mandate on January 23, 2025. Id. at 248–66.                               

   D. The Instant Petition.                                             
   On March 24, 2025, Hernandez-Perez initiated the instant proceedings under 28 U.S. 
§ 2254. See generally Petition. Construing the Petition liberally, consistent with Haines v. Kerner, 
404 U.S. 519, 520–21 (1972), Hernandez-Perez presents the following claims for relief: 
   Claim One: The trial testimony of expert witness, Dr. Kevin McElfresh, was 
   improperly admitted, and the trial court abused its discretion when it failed to 
   conduct a hearing to determine the reliability of the expert opinion offered, 
   contrary to Daubert. Petition at 12.                                 
   Claim Two: Ineffective assistance of counsel for failing to accept the State’s 
   plea deal. Id. at 15.                                                
   Claim Three:3 Ineffective assistance of counsel for failing to present judicial 
   bias claim on direct appeal. Id. at 19.                              
This Court addresses Petitioner’s claims for relief below.                
      II.  EXHAUSTION AND STATUTE OF LIMITATIONS                        
   Respondent concedes that this Petition appears timely. See [ECF No. 17 at 5–7] (citing 
Day v. McDonough, 547 U.S. 198 (2006)). Respondent does, however, contest that Hernandez-
Perez did not exhaust his state-court remedies before seeking federal habeas relief. See [ECF 
No. 17 at 7–9].  Nevertheless, Respondent addressed all claims on the merits. See id. at 38–
44, 47–50, 52–57. This Court will do the same, and, therefore, need not decide the issue of 
exhaustion. See Smith v. Crosby, 159 F. App’x 76, 79 n.1 (11th Cir. 2005) (per curiam) (holding 
that a § 2254 petition “may be denied on the merits, notwithstanding the failure of the 

applicant to exhaust the remedies available in the courts of the state”). 
                   III.  LEGAL STANDARDS                                
   A.  Deference Under Section 2254.                                    
   This Court’s review of a state prisoner’s federal petition for habeas corpus is governed 
by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-
132, 110 Stat. 1214. See Ledford v. Warden, GDCP, 818 F.3d 600, 642 (11th Cir. 2016), 
abrogation recognized on other grounds by Smith v. Comm’r, Ala. Dep’t of Corr., 67 F.4th 1335, 1348 
(11th Cir. 2023). “The purpose of [the] AEDPA is to ensure that federal habeas relief 

functions as a guard against extreme malfunctions in the state criminal justice systems, and 
not as a means of error correction.” Ledford, 818 F.3d at 642 (quoting Greene v. Fisher, 565 U.S. 
34,  38  (2011)).  Federal  habeas  corpus  review  of  final  state  court  decisions  is  “‘greatly 

3 Petitioner joined Claims Two and Three into one extensive argument. See Petition at 15–21. 
This Court addresses these combined claims as separate claims for clarity. 
circumscribed’ and ‘highly deferential,’” Ledford, 818 F.3d at 642 (quoting Hill v. Humphrey, 
662 F.3d 1335, 1343 (11th Cir. 2011)), and is generally limited to the record that was before 
the state court that adjudicated the claim on the merits, Ledford, 818 F.3d at 642 (citing Cullen 
v. Pinholster, 563 U.S. 170, 182 (2011)).                                 

   The federal habeas court is first tasked with identifying the last state court decision, if 
any, that adjudicated the claim on the merits. See Marshall v. Sec’y, Fla. Dep’t of Corr., 828 F.3d 
1277, 1285 (11th Cir. 2016). The state court is not required to issue an opinion explaining its 
rationale, because even the summary rejection of a claim, without explanation, qualifies as 
an adjudication on the merits which warrants deference. See Harrington v. Richter, 562 U.S. 86, 
100 (2011); Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008); see also Wilson v. Sellers, 
584 U.S. 122, 125 (2018); Sexton v. Beaudreaux, 585 U.S. 861, 964–65 (2018). 
   Where the claim was “adjudicated on the merits” in the state forum, Section 2254(d) 
prohibits relitigating the claim unless the state court’s decision was (1) “contrary to, or 

involved an unreasonable application of, clearly established Federal law, as determined by 
the Supreme Court of the United States;” 4 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); Harrington, 562 U.S. at 97–98; see also Williams v. Taylor, 529 U.S. 362, 412–13 (2000). 
When relying on Section 2254(d)(2), a federal court can grant relief if the state court rendered 
an erroneous factual determination. Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016).  
   This standard is intentionally difficult to meet. Harrington, 562 U.S. at 102. Because 
the “AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims 


4 “Clearly established Federal law” consists of the governing legal principles, rather than the 
dicta, set forth in the decisions of the Supreme Court at the time the state court issues its 
decision. White v. Woodall, 572 U.S. 415, 419 (2014) (citing Williams, 529 U.S. at 412).  
have been adjudicated in state court,” Burt v. Titlow, 571 U.S. 12, 19 (2013), “federal courts 
may grant habeas relief only when a state court blundered in a manner so ‘well understood 
and comprehended in existing law’ and ‘was so lacking in justification’ that ‘there is no 
possibility fairminded jurists could disagree[,]’” Tharpe, 834 F.3d at 1338 (11th Cir. 2016) 

(quoting Harrington, 562 U.S. at 102).                                    
   B.  Ineffective Assistance Of Trial Counsel.                         
   The  Sixth  Amendment  to  the  United  States  Constitution  guarantees  criminal 
defendants the right to the assistance of counsel during criminal proceedings against them. 
Strickland v. Washington, 466 U.S. 668, 684–85 (1984). When assessing counsel’s performance 
under Strickland, the court employs a strong presumption that counsel “rendered adequate 
assistance  and  made  all  significant  decisions  in  the  exercise  of  reasonable  professional 
judgment.” Id. at 690.                                                    
   To  prevail  on  a  claim  of  ineffective  assistance  of  counsel,  the  petitioner  must 

demonstrate that: (1) counsel’s performance was deficient, and (2) the petitioner suffered 
prejudice as a result of that deficiency. Id. at 687.                     
   To establish deficient performance, the petitioner must show that, in light of all the 
circumstances, counsel’s performance was outside the wide range of professional competence 
and “fell below an objective standard of reasonableness.” Id. at 687–88; see also Cummings v. 
Sec’y for Dep’t of Corr., 588 F.3d 1331, 1356 (11th Cir. 2009). The court’s review of counsel’s 
performance should not focus on what is possible, prudent, or appropriate but should focus 
on “what is constitutionally compelled.” Burger v. Kemp, 483 U.S. 776, 794 (1987).  
   Regarding the prejudice component, the Supreme Court has explained that “[t]he 

defendant  must  show  that  there  is  a  reasonable  probability  that,  but  for  counsel’s 
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 
U.S. at 694. A court need not address both prongs of Strickland if the defendant makes an 
insufficient showing on one of the prongs. Id. at 697. Further, counsel is not ineffective for 
failing to raise non-meritorious issues. Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001). 

Nor is counsel required to present every non-frivolous argument. Dell v. United States, 710 F.3d 
1267, 1282 (11th Cir. 2013).                                              
   Lastly,  a  Section  2254  Petitioner  must  provide  factual  support  for  his  or  her 
contentions regarding counsel’s performance. Smith v. White, 815 F.2d 1401, 1406–07 (11th 
Cir. 1987). Bare, conclusory allegations of ineffective assistance are insufficient to satisfy the 
Strickland test. See Boyd v. Comm’r, Ala. Dep’t of Corr., 697 F.3d 1320, 1332–34 (11th Cir. 2012).  
                      IV.  DISCUSSION                                   
   With the foregoing in mind, this Court addresses each of the grounds asserted in the 
Petition in turn.                                                         

A.  Claim One – Trial Court’s Failure To Conduct A Daubert Hearing.     
   In Claim One, Hernandez-Perez alleges that the trial court abused its discretion when 
it failed to conduct a Daubert hearing and thereby violated his due process rights. Petition at 
12, 14. He avers that the Court needed first to gauge whether Dr. McElfresh, the State’s 
“population  geneticist,”  was  eligible  to  testify.  See  id.  at  14.  The  record  reflects  that 
Hernandez-Perez’s counsel objected to Dr. McElfresh offering scientific opinions and appears 
to have moved to disqualify the expert from testifying. See id. Hernandez-Perez’s counsel 
explained to the court that Dr. McElfresh was “sanctioned for tactics and methods used by 
the Broward Crime lab” since he had written a letter endorsing standards concerning Y-STR 

DNA that the science community later discredited. Id. at 14 n.4. Moreover, Hernandez-
Perez’s counsel also argued that Dr. McElfresh failed to accept “norms within his profession, 
and  has  made  mathematical  errors  in  other  cases.”  Id. at  14.  The  court  overruled  the 
objections, did not hold a Daubert hearing, and explained that counsel would have a “full 
opportunity to cross [Dr. McElfresh].” (T. at 407).                       

   Ultimately, Dr. McElfresh testified about his “mathematical analysis looking at the 
‘electropherograms  that  are  the  results  from  the  case.’”  Id.  at  414.  Put  differently,  Dr. 
McElfresh offered a damaging opinion for the jury in which he opined that Petitioner’s DNA 
matched what was taken from the victim’s vaginal swabs. See id. at 417). Petitioner believes 
that the court’s failure to hold a Daubert hearing offended his fair trial rights. Petition at 14. 
This argument is unpersuasive for the following reasons.                  
   Initially, “the holding in Daubert is not premised on the Constitution.” Black v. Thomas, 
No. 1:04-CV-567 MEF, 2006 WL 2547405, at *7 n.1 (M.D. Ala. Aug. 31, 2006). Moreover, 
“A state trial court has wide discretion in determining whether to admit evidence at trial, and 

may exclude material evidence when there is a compelling reason to do so.” Lynd v. Terry, 
470 F.3d 1308, 1314 (11th Cir. 2006) (citation omitted); see also United States v. Hansen, 262 
F.3d 1217, 1234 (11th Cir. 2001) (noting that Daubert hearings at the federal level are 
discretionary). Only when evidentiary flaws “‘so infused the trial with unfairness as to deny 
due process of law’ is habeas relief warranted.” Black, 2006 WL 2547405, at *7 n.1 (quoting 
Lisenba v. California, 314 U.S. 219, 228 (1941)). And the district court’s review of state court 
evidentiary rulings through a habeas corpus petition is limited to a determination of “‘whether 
the error . . . den[ied] petitioner his right to a fair trial.’” Lopez v. Jones, No. 16-CV-62836, 
2017 WL 1541428, at *13 (S.D. Fla. Apr. 28, 2017) (Bloom, J.) (quoting Futch v. Dugger, 874 

F.2d 1483, 1487 (11th Cir. 1989), aff’d sub nom. Lopez v. Sec’y, Dep’t of Corr., 743 F. App’x 306 
(11th Cir. 2018)); see also Mills v. Singletary, 161 F.3d 1273, 1289 (11th Cir. 1998) (remarking 
that a grant for federal habeas relief should not be based on an evidentiary finding “unless the 
ruling affects the fundamental fairness of the trial.”) (citation omitted). The evidence at issue 
“must be inflammatory or gruesome, and so critical that its introduction denied petitioner a 

fundamentally fair trial.” Futch, 874 F.2d at 1487 (citation omitted).    
   With the foregoing in mind, this Court considers Dr. McElfreh’s testimony. On 
review, the evidence at issue here—irrespective of the admissibility at trial and possible 
exhaustion issues5—was not inflammatory or gruesome, nor was it a crucial, critical, highly 
significant factor in Hernandez-Perez’s conviction. See id. at 1487. The trial court’s failure to 
hold a Daubert hearing is not a basis for relief. First, the trial court likely would have found 
Dr. McElfresh a credible expert under Fla. Stat. § 90.702, which codified the Daubert standard 
into State law. [ECF No. 17 at 39] (citing DeLisle v. Crane Co., 258 So. 3d 1219, 1227 (Fla. 
2018)).  The statute permits scientific, technical, or other specialized knowledge into trial if 

the expert witness demonstrates that: “(1) The testimony is based upon sufficient facts or data; 
(2) The testimony is the product of reliable principles and methods; and (3) The witness has 
applied the principles and methods reliably to the facts of the case.” Fla. Stat. § 90.702(1)–(3) 
(2013).                                                                   
   Dr. McElfresh discussed his education and career, which established his scientific 
knowledge and experience in DNA analysis. See (T. at 409–11). He explained in court that he 
is a population geneticist by training and now focuses on projects “related to the mathematical 
analysis and interpretation of mixtures of DNA and various types of DNA as they relate both 
to forensics and medical problems.” Id. at 409. Moreover, he stated in court that his entire 


5 See Hernandez-Perez, 320 So. 3d at 766.                                 
career has focused on the application of DNA in criminal cases. Id. at 410. Dr. McElfresh’s 
testimony was relevant to issues in the case, as he “receives a DNA profile, he compares it to 
a reference sample to determine how frequently that profile would occur in the population.” 
Response [No. 17 at 41] (citing T. at 412–18). He described the analysis he conducted in this 

case to formulate the relevant statistics, which involved comparing the data he received with 
information from a database containing approximately fifty-six thousand individuals. (T. at 
421).                                                                     
   Not only was Dr. McElfresh’s testimony relevant to the case and likely satisfied Fla. 
Stat. § 90.702, but Hernandez-Perez’s counsel conceded that “there’s nothing about the 
statistical analysis he did . . . which make a good basis to file a motion to exclude him.” Id. at 
406. Instead, counsel raised objections in an effort “to make a record that should Dr. 
McElfresh be further discredited later on, [ ] my client could potentially raise those issues on 
appeal.” Id. Hernandez-Perez argues that Dr. McElfresh’s testimony was still tainted by his 

“documented history of mathematical errors and discredited methodology.” Traverse at 4. 
He also raises Dr. McElfresh’s endorsement of sanctioned standards from Broward County. 
Id. The trial court, however, assured counsel that “[w]hat happened in other cases is not going 
to come in in this case,” (T. at 407), while also giving counsel the full opportunity to cross-
examine Dr. McElfresh, during which counsel did challenge the expert’s experience, testing, 
and reliability in the presence of a jury, see id. at 424–40; see also California v. Green, 399 U.S. 
149, 158 (1970) (praising cross-examination as the “greatest legal engine ever invented for the 
discovery of truth.”).                                                    
   Importantly,  notwithstanding  Dr.  McElfresh’s  testimony,  the  prosecution  also 

presented other relevant evidence that contradicted Hernandez-Perez’s defense, including: (1) 
the victim’s trial testimony and her Child Protection Team (“CPT”) interviews detailing her 
sexual abuse; (2) a Palm Beach County Sheriff’s Office’s DNA Unit employee’s testimony 
that one of the swabs from the victim’s underwear had a DNA profile that largely matched 
Hernandez-Perez’s DNA profile; and (3) Hernandez-Perez’s incriminating jail calls. [ECF 

No. 17 at 43–44].                                                         
   Given the extensive testimony from Dr. McElfresh, defense counsel’s full opportunity 
to cross-examine Dr. McElfresh, and the panoply of other incriminating evidence presented 
at trial, Hernandez-Perez has not shown a basis to find that the trial court abused its discretion 
by not holding a Daubert hearing. The state court’s decision was not contrary to or an 
unreasonable application of federal constitutional principles, and Hernandez-Perez offers no 
valid reason for it to disturbed here. See Williams, 529 U.S. at 413. Therefore, this Court finds 
Claim One of the Petition to be without merit.                            
B.  Claim Two – Ineffective Assistance For Advising Petitioner Not To Accept A Plea Deal. 

   In Claim Two, Hernandez-Perez asserts that his trial attorney rendered ineffective 
assistance of counsel in violation of his Sixth and Fourteenth Amendment rights when his 
counsel advised him not to accept the State’s plea deal. Petition at 16.  
   Hernandez-Perez posits that his counsel’s advice against accepting a favorable plea 
offer was ineffective and based on “an unreasonable assessment of the strength of the state 
case.” Id. The State offered Hernandez-Perez a plea deal for a total of eighteen years’ 
imprisonment, with four years of time served and a mandatory designation as a sexual 
predator. Id. at 17. Hernandez-Perez states that he discussed the plea offer with his counsel 
and asked whether he should accept. Id. Hernandez-Perez acknowledges that his counsel 

advised him that acceptance of the offer “was ‘completely’ up to [him].” Id. Still, Hernandez-
Perez did not like the mandatory sexual predator designation, and he claims his “counsel 
made several remarks reflecting a personal preference to proceed to trial.” Id.  
   According to Hernandez-Perez, his counsel explained that he has “beaten” similar 
cases with stronger prosecutorial evidence than here. Id. Counsel remarked that he could 

easily impeach the victim and exclude the two CPT video interviews from evidence. Id. 
Hernandez-Perez claims he asked his counsel if he could win the case, to which counsel 
responded: “[W]ell, no one can say for sure,” but his case seemed “better than average” for 
an  acquittal  or,  at  worst,  the  jury  might  find  him  guilty  of  misdemeanor  battery.  Id. 
Hernandez-Perez rejected the plea offer, “[b]ased solely on counsel’s assessment . . . .” Id. He 
raised an ineffective assistance of counsel claim concerning the plea deal in the Rule 3.850 
motion, which the trial court denied, and the Fourth DCA affirmed. [ECF No. 18-1 at 244, 
264].                                                                     
   Given that “plea bargains have become so central to the administration of the criminal 

justice system[,]  .  .  . defense  counsel  ha[s] responsibilities  in  the plea  bargain  process, 
responsibilities that must be met to render the adequate assistance of counsel that the Sixth 
Amendment requires in the criminal process at critical stages.” Missouri v. Frye, 566 U.S. 134, 
143 (2012). To establish the Strickland prejudice prong related to a rejected plea due to an 
attorney’s alleged misadvice, a petitioner must allege and prove with a reasonable probability 
that: “(1) the defendant ‘would have accepted the offer had counsel advised the defendant 
correctly, (2) the prosecutor would not have withdrawn the offer, (3) the court would have 
accepted the offer, and (4) the conviction or sentence, or both, under the offer’s terms would 
have been less severe than under the judgment and sentence that in fact were imposed.’” 

George v. Jones, No. 17-14005-CIV, 2018 WL 10647359, at *10 (S.D. Fla. Jan. 30, 2018) 
(White,  Mag.)  (quoting  Alcorn  v.  State,  121  So.  3d  419,  430  (Fla.  2013)),  report  and 
recommendation adopted, No. 2:17-CV-14005, 2018 WL 10647238 (S.D. Fla. Feb. 27, 2018).  
   Here, there is little to establish prejudice related to this rejected plea deal. First, 
Hernandez-Perez fails to cite anything that would show his willingness to accept the offer but 

for counsel’s alleged deficiency. His own facts in the Petition clearly illustrate that his counsel 
offered candid advice about the plea, and that they discussed the benefits and drawbacks of 
declining the offer and the strengths and weaknesses of the State’s case. See Petition at 17; 
Response at 46 (citation omitted); see also [ECF No. 18-1 at 178] (stating in his Rule 3.850 
motion that Petitioner had a “heated” discussion with counsel on whether to take the plea 
deal and be designated a sexual predator); Padilla v. Kentucky, 559 U.S. 356, 370 (2010) 
(highlighting the “critical obligation” for counsel to advise their clients of the “the advantages 
and disadvantages of a plea agreement.”) (citation and quotation marks omitted). Eventually, 
counsel told the court that “Defendant acknowledges his understanding of the plea offer, but 

. . . wants to go to trial.” [ECF No. 18 at 179].                         
   Second, counsel’s expressions of general feelings of optimism about winning a case 
are not enough to establish an ineffective assistance of counsel claim. Although counsel stated 
that  Hernandez-Perez’s  case  seemed  more  favorable  than  previous  trials  he  had  done, 
Hernandez-Perez  acknowledges  that  counsel  nonetheless  qualified  this  by  adding  that 
acquittal was uncertain. See Petition at 18. Hernandez-Perez claims that he believes his 
counsel “grossly overstat[ed]” the chance of acquittal. Traverse at 5. Still, the Eleventh Circuit 
has contrasted the “difference between expressing optimism about a defendant’s chances at 
trial and guaranteeing that the defendant will win.” Teers v. United States, 739 F. App’x 960, 

966–67 (11th Cir. 2018) (comparing Lafler v. Cooper, 566 U.S. 156, 163 (2012), where “counsel 
was deficient when he advised respondent to reject the plea offer on the grounds he could not 
be convicted at trial.”).                                                 
   Based  on  the  circumstances  alleged  by  Hernandez-Perez,  this  Court  finds  that 
Hernandez-Perez fails to establish a Strickland violation in connection with the rejected plea 

offer. See Strickland, 466 U.S. at 697. Therefore, Claim One of the Petition is without merit. 
C.  Claim Three – Ineffective Appellate Counsel For Failure To Raise Judicial Bias Claim.  
   Lastly, Hernandez-Perez argues that his appellate counsel was ineffective for failing to 
raise a judicial bias claim regarding the state trial court judge. Petition at 19.  
   The record reflects that trial counsel filed a pretrial motion to disqualify the trial judge 
due to her apparent and pervasive bias against defense counsel during a status conference. Id. 
at 20; [ECF No. 18-2 at 103]. In the motion, defense counsel argued that the trial court judge 
should  disqualify  herself  after  she  “made  several  remarks  regarding  defense  counsel’s 
attendance and preparedness,” was impatient and irritated with delays, made “repeated 

admonishments from the bench toward defense counsel[,]” and on grounds that the trial 
judge’s husband represented defense counsel in a criminal contempt case.  [ECF No. 18-2 at 
105]. The trial judge denied the motion on substantive and procedural grounds. See id. at 110–
11 (collecting cases). Hernandez-Perez claims his appellate counsel was ineffective for not 
challenging the denial of the motion before the Fourth DCA, “[d]espite the fact that judicial 
bias is apparent on the face of the record.” Petition at 20.              
   A  petitioner  establishes  ineffective  assistance  of  appellate  counsel,  where:  “(1) 
appellate counsel’s performance was deficient, and (2) but for counsel’s deficient performance 
he would have prevailed on appeal.” Shere v. Sec’y, Fla. Dep’t of Corr., 537 F.3d 1304, 1310 

(11th Cir. 2008) (citing Smith v. Robbins, 528 U.S. 259, 285–86 (2000)). Appellate counsel’s 
performance is not deficient for failing to raise a claim on appeal “‘unless that claim was 
plainly stronger than those actually presented to the appellate court.’” Ward v. Dep’t of Corr., 
No. 20-13797-C, 2021 WL 4772143, at *4 (11th Cir. Apr. 20, 2021) (quoting Davila v. Davis, 
582 U.S. 521, 532 (2017)).                                                

   Florida Supreme Court precedent, which applied to the issue in the state court, 
provides that “[a] motion to disqualify a judge must be well-founded and contain facts 
germane to the judge’s undue bias, prejudice, or sympathy.” Gregory v. State, 118 So. 3d 770, 
778 (Fla. 2013) (quotation marks and citation omitted). This requires “objectively reasonable” 
fear. Sexton v. State, 402 So. 3d 270, 281 (Fla. 2024) (citing Gregory, 118 So. 3d at 778), reh’g 
denied (Jan. 9, 2025), reh’g denied, 399 So. 3d 1102 (Fla. 2025), and cert. denied sub nom. Sexton 
v. Fla., No. 24-6942, 2025 WL 2823833 (U.S. Oct. 6, 2025); see also In re Walker, 532 F.3d 
1304, 1310–11 (11th Cir. 2008) (“The standard [for recusal] is whether an objective, fully 
informed lay observer would entertain significant doubt about the judge’s impartiality.”) 

(citation omitted).                                                       
   Here, the motion to disqualify ultimately distills down to the trial judge making several 
comments regarding defense counsel’s attendance and preparedness in pretrial hearings, and 
“the fact that [the] judge is married to an attorney who represented defense counsel for similar 
issues, give rise to a justifiable and reasonable fear that . . . Hernandez-Perez . . . will not 
receive a fair trial.” See [ECF No. 18-2 at 106]. On the record before this Court, it cannot be 
said that appellate counsel’s failure to confront the motion to disqualify was deficient since 
“judicial rulings alone almost never constitute a valid basis for a bias or partiality recusal 
motion.” See Liteky v. United States, 510 U.S. 540, 556 (1994). Nor will a judge’s “stern” 
comments made during trial “that are critical or disapproving of, or even hostile to, counsel[,] 
the parties or their cases.” Id. at 556.                                  
    In the motion to disqualify before the trial court, defense counsel was largely silent on 
just how the court’s comments or how the trial judge’s husband’s representation of counsel 

would degrade Hernandez-Perez’s constitutional protections. There needed to be a solid 
factual  basis  to  recuse  the  judge  without  “unsupported,  irrational  or  highly  tenuous 
speculation.” See Wilkinson v. Tucker, No. 12-80404-CIV, 2016 WL 8453691, at *2 (S.D. Fla. 
July 7, 2016) (White, Mag.) (citing United States v. Cerceda, 188 F.3d 1291 (11th Cir. 1999)). 
The record reveals no such solid facts. Appellate counsel did, however, raise two grounds 
concerning the trial court’s jury instructions and failure to hold a Daubert hearing, which 
warranted a written opinion from the Fourth DCA that expressed its reasons for affirming 
Hernandez-Perez’s conviction. See ECF No. 18-1 at 31, 93; Ward, 2021 WL 4772143, at *4. 
Under the circumstances presented, Hernandez-Perez has not shown that appellate counsel 

was deficient for failing to raise an attenuated claim based on the trial judge’s failure to recuse. 
See Ward, 2021 WL 4772143, at *4; Chandler v. Moore, 240 F. 3d 907, 917–18 (11th Cir. 2001) 
(holding that the appellate counsel was not ineffective for not raising futile issues).  
   For the above-discussed reasons, this Court finds that Hernandez-Perez fails to satisfy 
the high standard applicable to § 2254 claims, and, therefore, each of the claims for relief 
asserted in the Petition is due to be denied. Thus, this Court must consider whether to issue a 
certificate of appealability.                                             
             V.   CERTIFICATE OF APPEALABILITY                          
   As amended effective December 1, 2009, § 2254 Rule 11(a) 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).” A timely notice of appeal must 
still be filed, even if the court issues a certificate of appealability. See Rules Governing § 2254 
Proceedings, Rule 11(b), 28 U.S.C. § 2254.                                

   After review of the record, this Court finds that Hernandez-Perez is not entitled to a 
certificate of appealability. “A certificate of appealability may issue . . . only if the applicant 
has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 
To merit a certificate of appealability, a petitioner must show that reasonable jurists would 
find debatable both (1) the merits of the underlying claims and (2) the procedural issues he 
seeks to raise. Slack v. McDaniel, 529 U.S. 473, 478 (2000); see also Eagle v. Linahan, 279 F.3d 
926, 935 (11th Cir. 2001). Because this Court finds that the claims raised are clearly without 
merit,  Hernandez-Perez  cannot  satisfy  the  Slack  test  and,  therefore,  a  certificate  of 
appealability shall not issue as to the claims asserted in the Petition.  

                      VI.  CONCLUSION                                   
   For the reasons set forth above, this Court finds that the Petitioner has failed to set 
forth an entitlement to habeas relief.6                                   
   Accordingly, it is ORDERED AND ADJUDGED that:                        
   1.  The Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 [ECF No. 1] is 
     DENIED.                                                            
   2.  A certificate of appealability is DENIED.                        



6 Because the Court can “adequately assess [Petitioner’s] claim[s] without further factual 
development,” an evidentiary hearing is not required. See Turner v. Crosby, 339 F.3d 1247, 
1275 (11th Cir. 2003).                                                    
    3.  The Clerk of Court is INSTRUCTED to CLOSE this case. 
    4.  All pending motions, if any, are DENIED AS MOOT. 
    DONE AND ORDERED in Chambers at the Southern District of Florida, this 5th 
day of November 2025. 

                                 MELISSA “ald               
                                  UNITED STATES DISTRICT JUDGE 

cc:    Eleazer Hernandez-Perez, pro se, 
    Q60626 
    Taylor Correctional Institution-Annex 
    Inmate Mail/Parcels 
    8629 Hampton Springs Road 
    Perry, FL 32348 

    Rachael Kaiman 
    Office of the Attorney General 
    1515 N. Flagler Drive, Suite 900 
    West Palm Beach, FL 33401 
    561-837-5000 ex172 
    Email: rachael.kaiman@myfloridalegal.com 

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