Jennings v. Secretary, Department of Corrections (Sarasota County)

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UNITED STATES DISTRICT COURT                             
                MIDDLE DISTRICT OF FLORIDA                              
                       TAMPA DIVISION                                   

DOUGLAS A. JENNINGS,                                                      

   Petitioner,                                                          

v.                                         Case No. 8:23-cv-951-WFJ-AEP   

SECRETARY, DEPARTMENT                                                     
OF CORRECTIONS,                                                           

   Respondent.                                                          
                                                                      / 

                           ORDER                                        

   Douglas A. Jennings, a Florida prisoner, timely filed a pro se petition for writ of 
habeas corpus under
28 U.S.C. § 2254
. (Doc. 1; see also Doc. 3). Respondent filed a 
response opposing the petition. (Doc. 11). Mr. Jennings filed a reply. (Doc. 14). After 
careful review, the petition is DENIED.                                   
I.   Background                                                           
   From May 2010 to May 2015, Mr. Jennings shared a house in Sarasota, Florida with 
his girlfriend Sharon Young and her four children. (Doc. 11-2, Ex. 16, at 278-79, 294, 297). 
One of the children—M.B.—was eleven years old in the summer of 2013. (Id. at 135). One 
night that summer, Mr. Jennings entered M.B.’s bedroom, lay down next to her, and 
touched her buttocks and vagina. (Id. at 146-48). On another occasion, Mr. Jennings 
entered M.B.’s room, “pulled down his pants,” and asked her whether she “wanted to play 
with something.” (Id. at 149). Similar incidents happened “[a] lot” that summer. (Id. at 
149-50). M.B. did not disclose the abuse at the time because she was “scared” and Mr. 
Jennings had instructed her “not to tell [her] mom.” (Id. at 151).        

   The abuse came to light almost two years later, on May 1, 2015. (Id. at 287-88). 
M.B.’s grades had “started to come down a lot,” and her mother had urged her to “figure 
out how she could fix them.” (Id. at 283-84). That day, while M.B. was in school, she sent 
her mother a text message “explaining why her grades were bad.” (Id. at 285, 288). The 
text listed several “[p]roblems” in M.B.’s life, including “stepdad molested me.” (Id. at 
288). After receiving this text, M.B.’s mother left work early to pick her daughter up at 

school. (Id. at 292). During the ensuing conversation, M.B. told her mother that on one 
occasion, Mr. Jennings “had gotten into bed with her and put his hands in her pants,” and 
that on another occasion, he had “come into her room[,] pulled down his pants[,] and 
exposed himself and kind of wagged his penis at her.” (Id. at 294). M.B. subsequently 
provided a similar description of the abuse during a forensic interview with a member of 

the Sarasota County Child Protection Team. (Id. at 216-38).               
   Although Mr. Jennings was tried only for his molestation of M.B., the jury also 
heard about his sexual abuse of C.B., M.B.’s older sister. C.B. was fourteen years old in 
the summer of 2013. (Id. at 199). One evening, Mr. Jennings drunkenly entered C.B.’s 
bedroom, began giving her a “back massage,” and “undid [her] bra.” (Id. at 201). During 

the “massage,” Mr. Jennings “squeezed” C.B.’s buttocks. (Id.) The next morning, Mr. 
Jennings came back “crying” and said he “sometimes . . . forg[ot] his place.” (Id.) On 
another occasion, Mr. Jennings entered C.B.’s room, lay next to her on the bed, and said 
he “had a crush on [her] and that [she] wasn’t allowed to tell [her] mom that.” (Id.)  
   During a subsequent interview with law enforcement, Mr. Jennings denied any 
inappropriate touching of M.B. (Id. at 357-58). He also said he could not recall “touching 

[C.B.] on the butt.” (Id. at 356). He admitted, however, that he had unhooked C.B.’s bra 
while “rubbing her back.” (Id.)                                           
   The jury found Mr. Jennings guilty of lewd or lascivious molestation of a child 
under twelve years of age. (Id., Ex. 17). The trial court sentenced him to thirty years in 
prison. (Id., Ex. 22, at 21). Following an unsuccessful direct appeal, Jennings v. State,
241 
So. 3d 777
(Fla. 2d DCA 2017), Mr. Jennings moved for postconviction relief under 

Florida Rule of Criminal Procedure 3.850, (Doc. 11-2, Exs. 36, 39). The postconviction 
court denied relief, and the appellate court affirmed. (Doc. 11-2, Exs. 41, 45, 51). This 
federal habeas petition followed. (Doc. 1).                               
II.  Standards of Review                                                  
   A.   AEDPA                                                           

   The  Antiterrorism  and  Effective  Death  Penalty  Act  (“AEDPA”)  governs  this 
proceeding. Carroll v. Sec’y, DOC,
574 F.3d 1354, 1364
(11th Cir. 2009). Habeas relief 
can be granted only if a petitioner is in custody “in violation of the Constitution or laws or 
treaties of the United States.”
28 U.S.C. § 2254
(a). Section 2254(d) provides that federal 
habeas relief cannot be granted on a claim adjudicated on the merits in state court unless 

the state court’s adjudication:                                           
   (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. 

   A decision is “contrary to” clearly established federal law “if the state court arrives 
at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if 
the state court decides a case differently than [the Supreme] Court has on a set of materially 
indistinguishable facts.” Williams v. Taylor,
529 U.S. 362, 413
(2000). A decision involves 
an “unreasonable application” of clearly established federal law “if the state court identifies 
the  correct  governing  legal  principle  from  [the  Supreme]  Court’s  decisions  but 
unreasonably applies that principle to the facts of the prisoner’s case.”
Id.
AEDPA was meant “to prevent federal habeas ‘retrials’ and to ensure that state-
court convictions are given effect to the extent possible under law.” Bell v. Cone,
535 U.S. 

685, 693
(2002). Accordingly, “[t]he focus . . . is on whether the state court’s application 
of clearly established federal law is objectively unreasonable, and . . . an unreasonable 
application is different from an incorrect one.”
Id. at 694
; see also Harrington v. Richter,
562 U.S. 86, 103
(2011) (“As a condition for obtaining habeas corpus from a federal court, 
a state prisoner must show that the state court’s ruling on the claim being presented in 

federal court was so lacking in justification that there was an error well understood and 
comprehended in existing law beyond any possibility for fairminded disagreement.”). 
   The state appellate court affirmed Mr. Jennings’s conviction, as well as the denial 
of postconviction relief, without discussion. These decisions warrant deference under 
§ 2254(d)(1) because “the summary nature of a state court’s decision does not lessen the 

deference that it is due.” Wright v. Moore,
278 F.3d 1245, 1254
(11th Cir. 2002). When a 
state appellate court issues a silent affirmance, “the federal court should ‘look through’ the 
unexplained decision to the last related state-court decision that does provide a relevant 

rationale”  and  “presume  that the  unexplained  decision  adopted  the  same  reasoning.” 
Wilson v. Sellers,
138 S. Ct. 1188, 1192
(2018).                          
   B.   Exhaustion of State Remedies; Procedural Default                
   A federal habeas petitioner must exhaust his claims in state court before presenting 
them in his federal habeas petition.
28 U.S.C. § 2254
(b)(1)(A); O’Sullivan v. Boerckel,
526 
U.S. 838, 842
(1999) (“[T]he state prisoner must give the state courts an opportunity to act 

on his claims before he presents those claims to a federal court in a habeas petition.”). The 
exhaustion  requirement  is  satisfied if  the petitioner  fairly  presents  his  claim  in  each 
appropriate state court and alerts that court to the federal nature of the claim. Picard v. 
Connor,
404 U.S. 270, 275-76
(1971).                                      
   The doctrine of procedural default provides that “[i]f the petitioner has failed to 

exhaust state remedies that are no longer available, that failure is a procedural default which 
will bar federal habeas relief, unless either the cause and prejudice or the fundamental 
miscarriage of justice exception is established.” Smith v. Jones,
256 F.3d 1135
, 1138 (11th 
Cir. 2001). A fundamental miscarriage of justice occurs in an extraordinary case where a 
constitutional violation has probably resulted in the conviction of someone who is actually 

innocent. Schlup v. Delo,
513 U.S. 298, 327
(1995); Henderson v. Campbell,
353 F.3d 880, 
892
(11th Cir. 2003). To establish cause for a procedural default, a petitioner “must 
demonstrate that some objective factor external to the defense impeded the effort to raise 
the claim properly in state court.” Wright v. Hopper,
169 F.3d 695, 703
(11th Cir. 1999). 
A  petitioner  demonstrates  prejudice  by  showing  that  “there  is  at  least  a  reasonable 
probability  that  the  result  of  the  proceeding  would  have  been  different”  absent  the 

constitutional violation. Henderson,
353 F.3d at 892
.                     
   C.   Ineffective Assistance of Counsel                               
   Mr. Jennings alleges ineffective assistance of trial counsel. Ineffective-assistance-
of-counsel claims are analyzed under the test established in Strickland v. Washington,
466 
U.S. 668
(1984). Strickland requires a showing of deficient performance by counsel and 
resulting prejudice.
Id. at 687
. Deficient performance is established if, “in light of all the 

circumstances, the identified acts or omissions [of counsel] were outside the wide range of 
professionally competent assistance.”
Id. at 690
. However, “counsel is strongly presumed 
to have rendered adequate assistance and made all significant decisions in the exercise of 
reasonable professional judgment.”
Id.
Mr. Jennings must show that counsel’s alleged error prejudiced the defense because 

“[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside 
the judgment of a criminal proceeding if the error had no effect on the judgment.”
Id. at 
691
. To demonstrate prejudice, Mr. Jennings must show “a reasonable probability that, but 
for counsel’s unprofessional errors, the result of the proceeding would have been different. 
A  reasonable  probability  is  a  probability  sufficient  to  undermine  confidence  in  the 

outcome.”
Id. at 694
.                                                     
   Obtaining relief on a claim of ineffective assistance of counsel is difficult on federal 
habeas review because “[t]he standards created by Strickland and § 2254(d) are both highly 
deferential, and when the two apply in tandem, review is doubly so.” Richter,
562 U.S. at 
105
(internal quotation and citations omitted); see also Pooler v. Sec’y, Dep’t of Corr.,
702 
F.3d 1252, 1270
(11th Cir. 2012) (“Because we must view Pooler’s ineffective counsel 

claim—which is governed by the deferential Strickland test—through the lens of AEDPA 
deference, the resulting standard of review is doubly deferential.”). “The question [on 
federal habeas review of an ineffective-assistance claim] ‘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 Schriro v. Landrigan,
550 U.S. 465, 473
(2007)).                                                                  
III.  Discussion                                                          
   A.   Ground  One—Exclusion  of  M.B.’s  “Handwritten  Cards”  to  Mr. 
        Jennings                                                        

   Mr. Jennings contends that the trial court violated his constitutional rights by 
excluding “handwritten cards . . . written to [him] by M.B.” (Doc. 1 at 11-12). M.B. wrote 
the cards in “mid-March 2015”—approximately two months before she told her mother 
that Mr. Jennings had sexually abused her during the summer of 2013. (Id. at 12). M.B. 
signed one card as “your favorite” and included a hand-drawn heart. (Doc. 11-2, Ex. 57, at 
874). This card read, “To: Chef Wizard. . . . Happy Doug Day! I love you the most because 
. . . well, do you see any other card?” (Id. at 874-75). Another card said, “Happy Doug 
Day[.] I don’t usually make cards for muggles, but it seemed legit today.” (Id. at 873). And 
in a third card, M.B. wrote, “Happy Doug Day. . . . I hope you like you[r] presents[.] 

Sincerely, your favorite.” (Id. at 876). According to Mr. Jennings, the cards “convey[ed] . 
. . affection toward [him] less than 60 days before M.B.” accused him of sexual abuse. 
(Doc. 1 at 13). Thus, in Mr. Jennings’s view, the cards showed that M.B.’s accusations 

“were just recent fabrications.” (Id. at 14).                             
   The prosecution sought to preclude Mr. Jennings from introducing the cards as 
“extrinsic evidence.” (Doc. 11-2, Ex. 16, at 14-15). The trial court excluded the physical 
copies of the cards but allowed Mr. Jennings to cross-examine M.B. about their contents. 
(Id. at 194). For example, M.B. admitted on cross-examination that “60 days prior to . . . 
making this accusation,” she wrote Mr. Jennings a card saying “I’m your favorite” and 

“Happy Doug Day, I love you the most.” (Id. at 173-74). M.B. also conceded that she wrote 
Mr. Jennings another card saying “I hope you like your presents, I love you, sincerely, your 
favorite.” (Id. at 176). Through cross-examination, the jury heard the contents of each card 
that M.B. wrote to Mr. Jennings in March 2015. (Id. at 173-76). Because of the court’s 
ruling, however, the jury did not see the cards themselves. (Id. at 194). 

   Mr. Jennings now contends that the exclusion of the “physical cards” violated his 
rights to due process and to present a complete defense. (Doc. 1 at 14-15). He argues that 
the cards themselves  “would have had a material visual impact with the  jury,”  thus 
undermining “the credibility of the State’s only actual witness” by showing that M.B. 
displayed affection for him “less than 60 days before” accusing him of sexual abuse. (Id. 

at 13-14). Respondent asserts that this claim is unexhausted and procedurally defaulted. 
(Doc. 11 at 6-8). The Court need not reach that issue because the claim fails on the merits. 
See Dallas v. Warden,
964 F.3d 1285, 1307
(11th Cir. 2020) (“[A] federal court may skip 
over the procedural default analysis if a claim would fail on the merits in any event.”). 
   “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment 
or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the 

Constitution  guarantees  criminal  defendants  a  meaningful  opportunity  to  present  a 
complete defense.” Holmes v. South Carolina,
547 U.S. 319, 324
(2006). But the right to 
a  meaningful  opportunity  to  present  a  complete  defense  is  “subject  to  reasonable 
restrictions.” United States v. Scheffer,
523 U.S. 303, 308
(1998). And “if the court permits 
a defendant to present the essence of his desired argument to the jury, his right to present 
a complete defense has not been prejudiced.” United States v. Lewis,
40 F.4th 1229, 1246
(11th Cir. 2022). “Nor does [a trial court’s] exclusion of cumulative evidence violate the 
right to present a complete defense.” United States v. Ahmed,
73 F.4th 1363, 1380
(11th 
Cir. 2023).                                                               
   The exclusion of the handwritten cards did not violate Mr. Jennings’s right to 
present a complete defense. The jury did not see the cards themselves, but M.B. admitted 

on cross-examination to authoring each card, and the jury heard what M.B. had written to 
Mr. Jennings. (Doc. 11-2, Ex. 16, at 173-76, 194). Indeed, M.B. even conceded that she 
had included a hand-drawn “heart” on one of the cards. (Id. at  174). Based on this 
testimony, defense counsel argued in closing that “six weeks prior” to accusing Mr. 
Jennings of sexual abuse, M.B. had written “letters” saying “I love you the most, you’re 

the coolest, you’re the Chef Wizard.” (Id. at 430). Because the court allowed Mr. Jennings 
to present “the essence of his desired argument to the jury,” the exclusion of the cards did 
not violate his right to present a complete defense. Lewis,
40 F.4th at 1246
; see also United 
States  v.  Nunez,
1  F.4th  976,  992
(11th  Cir.  2021)  (“[T]he  district  court  allowed 
[defendants] to place the key facts before the jury, so it did not violate [their] right to defend 
themselves.”).                                                            

   B.   Ground Two, Sub-Claim A—Prosecutorial Misconduct                

   Mr. Jennings contends that several instances of alleged prosecutorial misconduct 
violated his federal constitutional right to a “fair trial.” (Doc. 1 at 16-20). He complains, 
for example, that the prosecution “failed to comply with a court order to exclude any 
mention that [he] had stated he had a ‘crush’ on C.B. because it denoted a non-sexual 
event.” (Id. at 17).                                                      
   Respondent correctly contends that Mr. Jennings failed to exhaust this claim. (Doc. 
11 at 11). Proper exhaustion requires a petitioner to “make the state court aware that the 
claims asserted present federal constitutional issues.” Jimenez v. Fla. Dep’t of Corr.,
481 
F.3d 1337, 1342
(11th Cir. 2007). “A litigant wishing to raise a federal issue can easily 
indicate the federal law basis for his claim in a state-court petition or brief, for example, by 

citing in conjunction with the claim the federal source of law on which he relies or a case 
deciding such a claim on federal grounds, or by simply labeling the claim ‘federal.’” 
Baldwin v. Reese,
541 U.S. 27, 32
(2004). A petitioner must do more, however, than 
“scatter some makeshift needles in the haystack of the state court record.” McNair v. 
Campbell,
416 F.3d 1291, 1303
(11th Cir. 2005). Moreover, a petitioner “does not ‘fairly 

present’ a claim to a state court if that court must read beyond a petition or a brief” to find 
the “federal claim.” Baldwin,
541 U.S. at 32
.                             
   Mr. Jennings failed to squarely present his federal constitutional claim on direct 
appeal. In his initial  brief, he argued that  “the prosecutor committed several acts of 
misconduct, which, taken in their cumulative effect, prejudiced [his] right to a fair trial.” 
(Doc. 11-2, Ex. 29, at 19-20). But he never asserted a violation of his federal right to a fair 

trial. As the Eleventh Circuit has explained, the bare assertion that a defendant “was denied 
due process and a fair trial” is “insufficient to present” a federal claim because “this 
language could just be asserting a fair trial claim under the Florida Constitution and 
Florida’s Due Process Clause.” Zeigler v. Crosby,
345 F.3d 1300
, 1308 n.5 (11th Cir. 
2003); see also Williams v. Sec’y, Dep’t of Corr., No. 8:12-cv-973-JDW-TGW,
2015 WL 
4040521
, at *7 (M.D. Fla. June 25, 2015) (“Petitioner’s cursory and vague statement in his 

Initial Brief that ‘the State clearly violated the defendant’s right to a fair trial’. . . [was] 
insufficient to present fairly to the state appellate court a federal constitutional issue.”). 
Moreover, Mr. Jennings relied entirely on Florida caselaw in arguing that prosecutorial 
misconduct required reversal. (Doc. 11-2, Ex. 29, at 20-30). “Under these circumstances, 
[Mr. Jennings] cannot be said to have fairly apprised the state court of his federal . . . 

claim.” Preston v. Sec’y, Fla. Dep’t of Corr.,
785 F.3d 449, 459
(11th Cir. 2015). 
   Mr. Jennings cannot return to state court to present his unexhausted claim in a 
second, untimely direct appeal. See Fla. R. App. P. 9.140(b)(3) (stating that a notice of 
appeal must be filed within thirty days of the rendition of a sentence). As a result, this claim 
is procedurally defaulted. See Smith, 256 F.3d at 1138 (“If the petitioner has failed to 

exhaust state remedies that are no longer available, that failure is a procedural default which 
will bar federal habeas relief, unless either the cause and prejudice or the fundamental 
miscarriage of justice exception is established.”). And because Mr. Jennings has not shown 
that an exception applies to overcome the default, his claim of prosecutorial misconduct is 
barred from federal habeas review.                                        

   C.   Ground Two, Sub-Claim B—Failure to Object to Allegedly Improper 
   Remarks During Closing Argument                                      

   Mr. Jennings faults trial counsel for failing to “object to . . . improper closing 
arguments made by the prosecutor.” (Doc. 1 at 16). He identifies the following allegedly 
improper remarks from the prosecutor’s closing argument: (1) “[I]t’s expected and it’s no 
big surprise that you would have [a] disclosure by a child [of sexual abuse] that happened 
a few years ago”; (2) “Of course he touched her and she didn’t want it”; (3) “This little girl 
deserves justice”; and (4) M.B. was in a “nightmare from which she doesn’t get to wake 
up ever for the rest of her life.” (Id. at 19-20; Doc. 3 at 10). According to Mr. Jennings, 
counsel was ineffective for failing to object to these remarks. (Doc. 1 at 16). 
   The  postconviction  court  rejected  this  claim.  It  began  with  the  prosecutor’s 
statement that “it was ‘expected’ and ‘no big surprise’ that a child victim would make a 
disclosure  years  after  the  crime.”  (Doc.  11-2,  Ex.  41,  at  4).  The  court  rejected  Mr. 
Jennings’s argument that this statement improperly “vouched for M.B.’s credibility.” (Id.) 

According to the court, the challenged statement “was an explanation for the lack of 
physical forensic evidence in the case,” and it was “supported by M.B.’s testimony that she 
tried to keep the abuse secret because she was scared and confused, and [Mr. Jennings] told 
her not to tell her mother.” (Id.) Thus, the remark did not qualify as “[i]mproper vouching” 
because it did not “suggest[] reasons to believe a witness that were not presented to the 

jury or otherwise implicitly refer[] to information outside the record.” (Id.) As for the 
statement, “Of course he touched her and she didn’t want it,” the court noted that (1) it 
“was also supported by the direct testimony of M.B,” and (2) the prosecutor was attempting 

to explain “that although [Mr. Jennings] also committed certain lesser-included offenses, 
the jury must convict on the charged crime if they found him guilty.” (Id. at 4-5). Thus, 
this remark also did not “amount[] to improper vouching.” (Id. at 5).     
   Next, the court addressed the statement that M.B. “deserves justice.” (Id.) The court 
acknowledged  that  “it  [was]  well  settled  that  ‘justice  for  the  victim’  arguments  are 
improper” under Florida law. (Id. (citing Truehill v. State,
211 So. 3d 930, 950-51
(Fla. 

2017))). The court noted, however, that such remarks “do not warrant a new trial where, as 
here, they are singular and isolated.” (Id.) Finally, the court turned to the statement that 
M.B. was in “a nightmare from which she doesn’t get to wake up ever for the rest of her 
life.” (Id.) The court found that this statement “was an invited response to trial counsel’s 
earlier argument that the victim was an accomplished actress and a drama queen looking 

for attention, and was therefore not improper.” (Id.) In sum, the court found that counsel 
was not deficient “for failing to object, ask for curative instructions, or move for a mistrial 
after the prosecutor’s allegedly improper statements during closing argument.” (Id. at 4). 
   The rejection of this  claim was reasonable. The prosecutor did not engage in 
improper vouching when she sought to explain M.B.’s late disclosure, nor did she do so by 

saying, “Of course he touched her and she didn’t want it.” (Doc. 3 at 10). “A prosecutor’s 
remarks are improper if they attempt to bolster the credibility of a witness based on the 
government’s reputation or through alluding to evidence not admitted at trial.” United 
States v. Lopez,
590 F.3d 1238, 1256
(11th Cir. 2009). “To determine if the government 
improperly vouched for a witness, the court must decide whether a jury could reasonably 
believe that the prosecutor was indicating a personal belief in the witness’[s] credibility.” 

Lopez,
590 F.3d at 1256
. “This prohibition against vouching does not, however, forbid 
prosecutors from arguing credibility; rather, it forbids arguing credibility based on the 
reputation of the government office or on evidence not before the jury.”
Id.
Here, the challenged remarks did not “amount to an explicit, personal guarantee of 
credibility, such as assuring the jury that the prosecution would not have brought the case 
unless the defendant was actually guilty.” United States v. Hernandez,
921 F.2d 1569, 1573
(11th Cir. 1991). Instead, as the postconviction court explained, both statements rested on 
“the evidence admitted” at trial. United States v. Hope,
608 F. App’x 831, 841
(11th Cir. 
2015). “[A]n attorney is allowed to argue . . . credibility of witnesses or any other relevant 
issue so long as the argument is based on the evidence.” Miller v. State,
926 So. 2d 1243, 
1254-55
(Fla.  2006).  Because  the  challenged  remarks  did  not  amount  to  improper 

vouching, counsel was not deficient for failing to object on that basis. See Freeman v. Atty. 
Gen.,
536 F.3d 1225, 1233
(11th Cir. 2008) (noting that “[a] lawyer cannot be deficient for 
failing to raise a meritless claim”).                                     
   Nor did counsel provide ineffective assistance by failing to object to the statements 
that M.B. “deserves justice” and was in a “nightmare from which she doesn’t get to wake 

up ever for the rest of her life.” (Doc. 3 at 10). As the postconviction court explained, the 
“deserves justice” remark was improper, but it “was an isolated comment and thus, it alone 
would not mandate reversal.” Truehill,
211 So. 3d at 951
. Competent counsel could 
reasonably  decide  to  refrain  from  objecting  to  this  isolated  statement.  As  for  the 
“nightmare” remark, the postconviction court correctly found that any objection would 
have failed because the remark was an invited response. “A prosecutor’s comments are not 

improper where they fall into the category of an ‘invited response’ by the preceding 
argument of defense counsel concerning the same subject.” Walls v. State,
926 So. 2d 1156, 
1166
(Fla. 2006). Here, defense counsel argued in closing that M.B.’s testimony should be 
discounted because she was a “drama queen” who had received “an award for acting” in a 
school play. (Doc. 11-2, Ex. 16, at 429). The prosecutor responded, “This is not some sort 
of fantasy of which [M.B.] gets to have accolades for her starring role. This is a nightmare 

from which she doesn’t get to wake up ever for the rest of her life.” (Id. at 440). Because 
this remark was an invited response to defense counsel’s argument, counsel had no viable 
basis to object.                                                          
   For all these reasons, the postconviction court reasonably concluded that counsel 
was not deficient for failing to object to the challenged statements. See United States v. 

Nyhuis,
211 F.3d 1340, 1344
(11th Cir. 2000) (noting that counsel “is not ineffective for 
failing to raise claims reasonably considered to be without merit”).      
   D.   Ground Three—Admission of Child Hearsay                         

   Mr. Jennings contends that the trial court violated his rights to due process and a 
fair trial by admitting “child hearsay” statements by M.B. (Doc. 1 at 21-22). The jury 
watched a video of M.B.’s interview with the Sarasota County Child Protection Team, 
during which she described Mr. Jennings’s sexual abuse. (Doc. 11-2, Ex. 16, at 216-38). 
The jury also (1) saw M.B.’s text to her mother claiming that her “stepdad molested [her],” 
and (2) heard that M.B. told her mother in person that Mr. Jennings had sexually abused 
her on two occasions. (Id. at 288, 294).                                  

   These out-of-court statements were admitted under an exception to the hearsay rule 
for statements made by a child victim. (Id., Ex. 13). “For a child hearsay statement to be 
admissible, the statement must meet two specific reliability requirements: (1) the source of 
the information through which the statement was reported must show trustworthiness; and 
(2) the time, content, and circumstances of the statement must reflect that the statement 
provides sufficient safeguards of reliability.” Fitzsimmons v. State,
309 So. 3d 261
, 264 

(Fla.  1st  DCA  2020).  After  a  hearing,  the  trial  court  issued  a  written  order  on  the 
prosecution’s request to admit M.B.’s hearsay statements. (Doc. 11-2, Ex. 13). As for the 
statements made during the Child Protection Team interview, the court found that they 
“possess[ed] the requisite indicia of reliability.” (Id. at 3). Specifically, “M.B.’s statements 
were made in response to non-leading questions during a forensic interview conducted by 

a trained professional,” the statements were “consistent with statements made to her mother 
and  during  her  deposition,”  she  “appear[ed]  able  to  distinguish  between  reality  and 
fantasy,”  and  she  “provided  an  age-appropriate  description  and  used  age-appropriate 
terminology when describing the incidents.” (Id.) Moreover, although M.B. was “hesitant 
to discuss the events,” her “statements [were] not vague, and there [was] no evidence of 

coaching or improper influence.” (Id.)                                    
   The court likewise found that M.B.’s text messages and “verbal statements” to her 
mother “possess[ed] the requisite indicia of reliability to meet the statutory requirements.” 
(Id. at 4-5). The court noted that M.B. “spontaneously sent the statements via text message 
in response to non-leading questions,” that the texts were “consistent with other statements 
made to her mother, and statements made during her forensic interview and deposition,” 

and  that  M.B.  “lack[ed]  a  motive  to  fabricate  the  information  provided  in  the  text 
message[s].” (Id.) As for the “verbal statements,” the court found “no evidence of coaching 
or improper influence,” noting as well that “M.B. made her statements in response to non-
leading questions, her statements were not vague, and she described the incidents in an 
age-appropriate manner.” (Id. at 5).                                      
   Mr. Jennings now contends that the admission of these hearsay statements caused 

“extreme unfairness and prejudice” and violated his “right to a fair trial.” (Doc. 1 at 22). 
According to him, the “two-year delay in making [the] accusations rendered [M.B.’s] 
statements inherently unreliable,” there were unidentified “discrepanc[ies]” between the 
statements, and their “probative value . . . was certainly outweighed by the[ir] prejudicial 
effect.” (Id.) Respondent asserts that this claim is unexhausted and procedurally defaulted. 

(Doc. 11 at 15). The Court need not reach that issue because the claim fails on the merits. 
See Dallas,
964 F.3d at 1307
(“[A] federal court may skip over the procedural default 
analysis if a claim would fail on the merits in any event.”).             
   “[F]ederal  courts  will  not  generally  review  state  trial  courts’  evidentiary 
determinations.” Taylor v. Sec’y, Fla. Dep’t of Corr.,
760 F.3d 1284, 1295
(11th Cir. 2014). 

“Indeed, in a habeas corpus action brought by a state prisoner, [the court’s] authority is 
severely  restricted  in  the  review  of  state  evidentiary  rulings.”
Id.
“Habeas  relief  is 
warranted only when the error so infused the trial with unfairness as to deny due process 
of law.”
Id.
In other words, courts “will not grant federal habeas corpus relief based on an 
evidentiary ruling unless the ruling affects the fundamental fairness of the trial.” Mills v. 
Singletary,
161 F.3d 1273, 1289
(11th Cir. 1998).                         

   The “category of infractions that violate ‘fundamental fairness’” is “very narrow[],” 
and Mr. Jennings cannot show that the admission of M.B.’s hearsay statements crossed the 
line. Dowling v. United States,
493 U.S. 342, 352
(1990). As noted above, the out-of-court 
statements were admitted under the well-established hearsay exception for statements 
made by a child victim. (Doc. 11-2, Ex. 13). The trial court held a hearing, reviewed the 
challenged statements, and issued a detailed written order explaining why the statements 

were sufficiently reliable to qualify for the hearsay exception. (Id.; see also
id.,
Ex. 10). 
That order rested on reasonable factual findings, and the court thoroughly considered the 
factors governing the admission of child hearsay under Florida law. (Id., Ex. 13). Although 
Mr. Jennings believes that the court erred in admitting the statements, he cannot show 
“fundamental unfairness to deprive him of due process and a fair trial.”1 Moon v. Sec’y, 

Fla. Dep’t of Corr., No. 8:16-cv-387-WFJ-SPF,
2020 WL 6946440
, at *4-5 (M.D. Fla. 
Nov. 25, 2020) (no habeas relief for admission of child hearsay where, “after a full hearing 
on the state’s notice of intent to admit child hearsay statements and Petitioner’s motion in 
limine, the trial court found C.H.’s statements . . . admissible as out-of-court statements 
made by a child victim under 16”).                                        


1 To the extent Mr. Jennings contends that the admission of M.B.’s hearsay statements violated the 
Confrontation Clause, that argument fails. M.B. testified at trial and was subject to cross-examination. 
“[I]ntroduction of out-of-court statements, even if unreliable, does not violate the confrontation clause 
where the declarant testifies at trial subject to full and effective cross-examination.” Carson v. Collins,
993 
F.2d 461, 464
(5th Cir. 1993); see also Johnson v. Bett,
349 F.3d 1030, 1037
(7th Cir. 2003) (“Even when 
presumptively unreliable hearsay is admitted as substantive evidence, there is no violation so long as the 
declarant testifies as a witness and is subject to cross-examination.”).  
   E.   Ground Four—Introduction of Collateral-Act Evidence             

   Finally, Mr. Jennings maintains that the trial court violated the federal constitution 
by allowing the prosecution to present evidence that he committed “a similar collateral act 
of molestation” against C.B., the victim’s older sister. (Doc. 1 at 25). According to Mr. 
Jennings,  the  collateral-act  evidence  “had  absolutely  no  relevance  to  any  issue  in 
controversy at [the] trial, nor did the evidence have even an arguable tendency to prove a 
material fact.” (Id.)                                                     
   Respondent correctly contends that Mr. Jennings failed to exhaust this claim. (Doc. 

11 at 16). Although he challenged the admission of the collateral-act evidence on direct 
appeal,  Mr.  Jennings  failed  to  argue  that  this  evidentiary  ruling  violated  the  federal 
constitution. (Doc. 11-2, Ex. 29, at 36-40). Instead, he couched his argument entirely in 
terms of state law. (Id.) He cited only state rules of evidence and state-court opinions, 
focusing  in particular on Florida caselaw concerning  “admission of collateral crimes 

evidence.” (Id. at 37). Thus, Mr. Jennings failed to “make the state court aware that the 
claim[] [he] asserted present[ed] federal constitutional issues.” Jimenez,
481 F.3d at 1342
.  
   Mr. Jennings cannot return to state court to present his unexhausted claim in a 
second, untimely direct appeal. See Fla. R. App. P. 9.140(b)(3). As a result, this claim is 
procedurally defaulted. See Smith, 256 F.3d at 1138. And because Mr. Jennings has not 

shown that an exception applies to overcome the default, his claim is barred from federal 
habeas review.                                                            
IV.  Conclusion                                                           
   Accordingly, the Court ORDERS:                                       
1.  Mr. Jennings’s petition (Doc. 1) is DENIED. 
2.  The CLERK 1s directed to enter judgment against Mr. Jennings and to CLOSE this 
 case. 
3.  Mr. Jennings is not entitled to a certificate of appealability. A prisoner seeking a 
 writ of habeas corpus has no absolute entitlement to appeal a district court’s denial 
 of his petition.
28 U.S.C. § 2253
(c)(1). “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 obtain a  certificate of appealability, Mr. Jennings 
 must  show  that  reasonable jurists  would  find  debatable  both  the  merits  of the 
 underlying  claims  and  the  procedural  issues  he  seeks  to  raise.  See  Slack  v. 
McDaniel,
529  U.S.  473,  484
(2000).  Mr.  Jennings  has  not made  the  requisite 
 showing. Because Mr. Jennings is not entitled to a certificate of appealability, he is 
 not entitled to appeal in forma pauperis. 
 DONE AND ORDERED in Tampa, Florida, on September 5, 2024. 
                                    lieth, 
                                    UNITED STATES DISTRICT JUDGE 

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