Colbert v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JEFFREY RICARDO COLBERT,

Applicant,

v. CASE NO. 8:16-cv-1368-T-23CPT

SECRETARY, Department of Corrections,

Respondent.

/

O R D E R

Colbert applies under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 5)

and challenges both the revocation of his probation and his sentence to ten years

imprisonment. Numerous exhibits (“Respondent’s Exhibit __”) support the

response. (Doc. 18) The respondent admits the application’s timeliness (Response

at 10, Doc. 18) but argues that some grounds are barred from federal review.

I. BACKGROUND

In 2008, in exchange for a sentence of twenty-four months of drug offender

probation, Colbert pleaded guilty to possession of cocaine, with the intent to deliver,

within 1000 feet of a school. Four months later he violated seven conditions of

probation but was allowed to remain on probation. In 2009 Colbert was charged

with both delivery of cocaine within 1000 feet of a school and possession of cocaine

(“new charges”). Following a contested evidentiary hearing, the state circuit court

revoked Colbert’s probation and sentenced him to ten years imprisonment. In 2010

a jury convicted Colbert of the new charges and the court sentenced him to six years

imprisonment consecutive to the ten-year sentence for the probation revocation.

II. GROUNDS DEFAULTED IN STATE COURT

Colbert asserts five grounds for relief in his application. Four of the grounds

are not, however, entitled to a review on the merits. Colbert failed to properly

present to the state courts the federal claims in grounds one, two, four, and five.

“[E]xhaustion of state remedies requires that petitioners ‘fairly presen[t]’ federal

claims to the state courts in order to give the State the ‘opportunity to pass upon and

correct’ alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S.

364, 365 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)).

Ground One:

Colbert alleges that the trial court erred by revoking his probation based on

inadmissible evidence. A confidential informant was wired for sound and video

when she purchased cocaine from Colbert, which drug transaction formed the basis

for the new charges. Colbert contends (1) that the video recording was inadmissible

for lack of a proper foundation, including authentication under Section 90.901,

Florida Statutes, and (2) that all of the state’s evidence was inadmissible hearsay.

On direct appeal Colbert argued that the trial court abused its discretion by revoking

probation based on the allegedly inadmissible evidence. Although now characterized

as a violation of his federal rights, Colbert presented his claim to the appellate court

only as a state law issue. (Respondent’s Exhibit 4)

Federal habeas relief is available to correct only constitutional injury. Under

Section 2254(a), “a district court shall entertain an application for a writ of habeas

corpus in behalf of a person in custody pursuant to the judgment of a State court only

on the ground that he is in custody in violation of the Constitution or laws or treaties

of the United States.” See also Engle v. Isaac, 456 U.S. 107, 121 n.21 (1981) (“[A]

‘mere error of state law’ is not a denial of due process.”). Briefing an issue as a

matter of state law is not sufficient to exhaust a federal claim on the same grounds,

as Duncan v. Henry, 513 U.S. 364, 365S66 (1995), explains:

If state courts are to be given the opportunity to correct alleged

violations of prisoners’ federal rights, they must surely be

alerted to the fact that the prisoners are asserting claims under

the United States Constitution. If a habeas petitioner wishes to

claim that an evidentiary ruling at a state court trial denied him

the due process of law guaranteed by the Fourteenth

Amendment, he must say so, not only in federal court, but in

state court.

Accord Baldwin v. Reese, 541 U.S. 27, 32 (2004) (“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.’”). Federal review of ground one is barred because

Colbert failed to “fairly present” his federal claim to the state courts.

Ground Two:

Colbert alleges that counsel rendered ineffective assistance by improperly

advising him when he pleaded guilty in 2008 that the maximum possible

imprisonment was twenty-four months — the same duration as the drug offender

probation — if probation was ever revoked. Colbert first raised this claim in his

second motion for post-conviction relief. (Respondent’s Exhibit 12 at 6) The state

court rejected the claim as untimely. (Respondent’s Exhibit 13 at 5)

Colbert’s failure to timely present the claim to the state court bars federal

review. See O’Sullivan v. Boerckel, 526 U.S. 838, 847 (1999) (“Boerckel’s failure to

present three of his federal habeas claims to the Illinois Supreme Court in a timely

fashion has resulted in a procedural default of those claims.”). In rejecting the

untimely claim, the state court chose not to address the merits of the claim; federal

review would remain barred even if the state court had addressed the merits.

“[W]here a state court has ruled in the alternative, addressing both the independent

state procedural ground and the merits of the federal claim, the federal court should

apply the state procedural bar and decline to reach the merits of the claim.” Alderman

v. Zant, 22 F.3d 1541, 1549 (11th Cir.), cert. denied, 513 U.S. 1061 (1994). Federal

review of ground two is barred because Colbert failed to timely present the claim to

the state courts.

Grounds Four and Five:

Colbert alleges that counsel rendered ineffective assistance (1) by not objecting

to the revocation of probation based on the new charges before disposition of the new

charges (ground four), which claim he presented to the state court in his second

motion for post-conviction relief (Respondent’s Exhibit 12 at 9), and (2) by not

objecting to a sentence that departed from the guidelines absent the sentencing

court’s written statement of reasons, which claim he presented to the state court in

his first motion for post-conviction relief (Respondent’s Exhibit 10 at 9) The state

post-conviction court denied both claims on the merits. (Respondent’s Exhibit 13 at

9 (ground four) and Exhibit 11 at 5 (ground five)) Colbert asserted neither ground in

his brief on appeal. (Respondent’s Exhibit 16) A claim is unexhausted and

procedurally defaulted if not raised on appeal. “The Supreme Court of Florida

followed its well-established rule when it concluded that Doorbal’s claim of

ineffective assistance of counsel was waived because he failed to present an argument

about the merits of that issue on appeal . . . .” Doorbal v. Dep’t of Corr., 572 F.3d 1222

(11th Cir.), cert. denied, 558 U.S. 1030 (2009). See also Upshaw v. Singletary, 70 F.3d

576, 578 (11th Cir. 1995) (“[T]he applicant must have fairly apprised the highest

court of his state with the appropriate jurisdiction of the federal rights which allegedly

were violated.”) Federal review of grounds four and five is barred because Colbert

failed to appeal the denial of each claim.

III. ONLY GROUND REVIEWABLE ON THE MERITS

Colbert is entitled to the review of the merits of only ground three, which

presents a claim of ineffective assistance of counsel that was rejected in the post-

conviction proceedings.

A. Standard of Review

The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

governs this proceeding. Wilcox v. Florida Dep’t of Corr., 158 F.3d 1209, 1210 (11th

Cir. 1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a highly

deferential standard for federal court review of a state court adjudication, states in

pertinent part:

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.

In Williams v. Taylor, 529 U.S. 362, 412S13 (2000), the Supreme Court

interpreted this deferential standard:

In sum, § 2254(d)(1) places a new constraint on the power of a

federal habeas court to grant a state prisoner’s application for a

writ of habeas corpus with respect to claims adjudicated on the

merits in state court. Under § 2254(d)(1), the writ may issue only

if one of the following two conditions is satisfied — the state-

court adjudication resulted in a decision that (1) “was contrary

to . . . clearly established Federal Law, as determined by the

Supreme Court of the United States” or (2) “involved an

unreasonable application of . . . clearly established Federal law,

as determined by the Supreme Court of the United States.” Under

the “contrary to” clause, a federal habeas court may grant the

writ if the state court arrives at a conclusion opposite to that

reached by this Court on a question of law or if the state court

decides a case differently than this Court has on a set of

materially indistinguishable facts. Under the “unreasonable

application” clause, a federal habeas court may grant the writ if

the state court identifies the correct governing legal principle from

this Court’s decisions but unreasonably applies that principle to

the facts of the prisoner’s case.

“The focus . . . is on whether the state court’s application of clearly established

federal law is objectively unreasonable, . . . an unreasonable application is different

from an incorrect one.” Bell v. Cone, 535 U.S. 685, 693 (2002). “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.” Harrington v. Richter,

562 U.S. 86, 103 (2011). See White v. Woodall, 572 U.S. 415, 427 (2014) (“The critical

point is that relief is available under § 2254(d)(1)’s unreasonable-application clause if,

and only if, it is so obvious that a clearly established rule applies to a given set of facts

that there could be no ‘fairminded disagreement’ on the question . . . .”) (citing

Richter); Woods v. Donald, 135 S. Ct. 1372, 1376 (2015) (“And an ‘unreasonable

application of’ those holdings must be objectively unreasonable, not merely wrong;

even clear error will not suffice.”) (citing Woodall, 134 S. Ct. at 1702). Accord Brown v.

Head, 272 F.3d 1308, 1313 (11th Cir. 2001) (“It is the objective reasonableness, not

the correctness per se, of the state court decision that we are to decide.”). The phrase

“clearly established Federal law” encompasses only the holdings of the United States

Supreme Court “as of the time of the relevant state-court decision.” Williams v.

Taylor, 529 U.S. at 412.

The purpose of federal review is not to re-try the state case. “The [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.” Bell v. Cone, 535 U.S. at 694. A federal court

must afford due deference to a state court’s decision. “AEDPA prevents defendants

— and federal courts — from using federal habeas corpus review as a vehicle to

second-guess the reasonable decisions of state courts.” Renico v. Lett, 559 U.S. 766,

779 (2010). See also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“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’ . . . .”) (citations

omitted).

When the last state court to decide a federal claim explains its decision in a

reasoned opinion, a federal habeas court reviews the specific reasons as stated in the

opinion and defers to those reasons if they are reasonable. Wilson v. Sellers, 138 S. Ct.

1188, 1192 (2018) (“[A] federal habeas court simply reviews the specific reasons

given by the state court and defers to those reasons if they are reasonable.”). When

the relevant state-court decision is not accompanied with reasons for the decision,

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, 138 S. Ct. at 1192.

“The State may contest “the presumption by showing that the unexplained

affirmance relied or most likely did rely on different grounds than the lower state

court’s decision . . . .” Wilson, 138 S. Ct. at 1192.

In a per curiam decision without a written opinion the state appellate court on

direct appeal affirmed Colbert’s conviction and sentence. (Respondent’s Exhibit 6)

Similarly, in another per curiam decision without a written opinion the state appellate

court affirmed the denial of Colbert’s subsequent Rule 3.850 motion to vacate.

(Respondent’s Exhibit 18) The state appellate court’s per curiam affirmances warrant

deference under Section 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.), reh’g and reh’g en banc denied, 278 F.3d 1245 (2002), cert. denied sub

nom Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 131 S. Ct. at 784S85

(“When a federal claim has been presented to a state court and the state court has

denied relief, it may be presumed that the state court adjudicated the claim on the

merits in the absence of any indication or state-law procedural principles to the

contrary.”), and Bishop v. Warden, 726 F. 3d 1243, 1255S56 (11th Cir. 2013)

(describing the difference between an “opinion” or “analysis” and a “decision”

or “ruling” and explaining that deference is accorded the state court’s “decision” or

“ruling” even absent an “opinion” or “analysis”).

Colbert bears the burden of overcoming by clear and convincing evidence a

state court’s fact determination. “[A] determination of a factual issue made by a

State court shall be presumed to be correct. The applicant shall have the burden of

rebutting the presumption of correctness by clear and convincing evidence.”

28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact

but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836

(11th Cir.), cert. denied, 534 U.S. 1046 (2001). The state court’s rejection of Colbert’s

post-conviction claim warrants deference in this case. (Order Denying Motion for

Post-Conviction Relief, Colbert’s Exhibit attached to amended petition at Doc. 5)

B. Ineffective Assistance of Counsel

Colbert claims ineffective assistance of counsel, a difficult claim to sustain.

“[T]he cases in which habeas petitioners can properly prevail on the ground of

ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d

1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th

Cir. 1994)). Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains that

Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of

counsel claim:

The law regarding ineffective assistance of counsel claims is

well settled and well documented. In Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the

Supreme Court set forth a two-part test for analyzing ineffective

assistance of counsel claims. According to Strickland, 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. Strickland, 466 U.S. at 687, 104 S. Ct. 2052.

Strickland requires proof of both deficient performance and consequent

prejudice. See Strickland, 466 U.S. at 697 (“There is no reason for a court deciding

an ineffective assistance claim . . . to address both components of the inquiry if the

defendant makes an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When

applying Strickland, we are free to dispose of ineffectiveness claims on either of its two

grounds.”). “[C]ounsel is strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment.” Strickland, 466 U.S. at 690. “[A] court deciding an actual ineffectiveness

claim must judge the reasonableness of counsel’s challenged conduct on the facts of

the particular case, viewed as of the time of counsel’s conduct.” 466 U.S. at 690.

Strickland requires that “in light of all the circumstances, the identified acts or

omissions were outside the wide range of professionally competent assistance.”

466 U.S. at 690.

Colbert must demonstrate 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.” 466 U.S. at 691. To meet this burden, Colbert 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.” 466 U.S. at 694.

Under 28 U.S.C. § 2254(d) Colbert must prove that 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 or

(2) . . . based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” Sustaining a claim of ineffective assistance

of counsel is very difficult 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, 131 S. Ct. at 788. See also Pinholster, 131 S. Ct. at 1410 (An

applicant must overcome this “‘doubly deferential’ standard of Strickland and the

AEDPA.”), Johnson v. Sec’y, Dep’t of Corr., 643 F.3d 907, 911 (11th Cir. 2011)

(“Double deference is doubly difficult for a petitioner to overcome, and it will be a

rare case in which an ineffective assistance of counsel claim that was denied on the

merits in state court is found to merit relief in a federal habeas proceeding.”), and

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.”), cert. denied, 134 S. Ct. 191 (2013).

Ground Three:

Colbert alleges that counsel rendered ineffective assistance by neither

investigating nor presenting the testimony of three witnesses. Colbert alleges in his

federal application the same claim that he presented to the state post-conviction

court, which claim the court described as follows (Colbert’s Exhibit attached to

Doc. 5 at 23):

Defendant contended that he provided counsel with the first

name and address of the three people in the February 19, 2009,

video, that these witnesses would have been available to testify,

and that they would have testified that the informant fabricated

information to law enforcement and that Defendant was not the

person in the video who made the hand transaction or sold

crack cocaine to the informant, but that counsel failed to

investigate and call these witnesses at trial.

After determining that the claim required an evidentiary hearing, “the Court held an

evidentiary hearing on this allegation at which Defendant testified that, [regarding

the new charges], Defendant ultimately proceeded to trial with attorney Geogymon

George, where he was found guilty, and that[,] although he had asked counsel to

investigate witnesses, counsel failed to do so.” (Doc. 5 at 28) The post-conviction

court summarized the testimony of the attorneys who represented Colbert either in

the revocation proceeding or in the trial for the new charges (Doc. 5 at 30):

Attorneys Brandon Selph and Geogymon George both

testified at the evidentiary hearing, explaining that George

represented Defendant at trial after inheriting the case from

Selph, who had inherited the case from attorney Catherine

Scott. Both attorneys also testified that their files and notes

for this case reflect there to have not been any applicable

defense witnesses and that, had there been such witnesses,

the attorneys would have investigated such or made a request

to the investigator to locate and investigate such witnesses. Both

attorneys testified further that, even after Defendant’s violation

of probation hearing — as Selph testified — and after trial —

as George testified — Defendant still made no reference to

any such witnesses he believed should have testified. Attorney

George testified further about the video evidence in this case

and that he was aware there were other people shown on the

video, but that he did not recall Defendant ever requesting that

those witnesses be investigated nor did counsel’s notes reflect

that such a request was made, and that counsel would not have

independently sought to investigate these individuals as a

matter of strategy.

The post-conviction court determined both that the attorneys’ testimony was credible

and that the attorneys’ performance was not deficient. “[C]ounsel cannot be deemed

deficient as alleged where the evidence supports that Defendant did not request that

these witnesses be investigated and where counsel’s decision not to independently

seek investigation of these witnesses is a strategic one that this Court finds to be

reasonable under the circumstances.” (Doc. 5 at 35–36) The post-conviction court

also determined that Colbert did not prove prejudice as required under Strickland

(Doc. 5 at 36) (citations to hearing transcript omitted):

In addition to the evidence not supporting a finding of

deficiency on counsel’s part, this Court notes that Defendant

has also failed to demonstrate prejudice as a result of counsel’s

alleged deficiency. At the hearing, Defendant had the burden

of demonstrating a reasonable probability that the outcome

of his trial would have been different had these witnesses

been investigated and called to testify on Defendant’s behalf.

Demonstrating such requires evidence of admissible testimony

these witnesses would have testified to had they been called to

do so at trial. At the hearing, the only evidence before the Court

concerning the availability of these witnesses to testify on

Defendant’s behalf and what they would have testified to is

Defendant’s own testimony that “I believe the witnesses would

have testified that I wasn’t the one that sold the cocaine to the

confidential informant at the time of this alleged crime.” These

alleged witnesses — identified by Defendant only by first name

and by the boarding house room numbers at the time of the

offense — did not testify at the hearing, and in fact an

investigator who sought to investigate these witnesses for the

evidentiary hearing testified at the hearing that he could not

locate these witnesses with the information he was provided.

Based on the evidence presented, Defendant has not satisfied

his burden of demonstrating that a reasonable probability

exists that the outcome of Defendant’s trial would have

been different had these alleged witnesses testified, and this

Court’s confidence in the outcome of Defendant’s trial is not

undermined. As Defendant has not sufficiently demonstrated

that counsel was deficient or that Defendant was prejudiced as

a result of that alleged deficiency, he warrants no relief on these

allegations.

Because the state court correctly recognized that Strickland governs his claim of

ineffective assistance of counsel, Colbert cannot meet the “contrary to” test in Section

2254(d)(1). (Colbert’s Exhibit attached to Doc. 5 at 7) Colbert instead must show

that the state court unreasonably applied Strickland or unreasonably determined the

facts. In determining “reasonableness,” a federal application for the writ of habeas

corpus authorizes determining only “whether the state habeas court was objectively

reasonable in its Strickland inquiry,” not an independent assessment of whether

counsel’s actions were reasonable. Putnam v. Head, 268 F.3d 1223, 1244, n.17 (11th

Cir. 2001), cert. denied, 537 U.S. 870 (2002). The presumption of correctness and the

highly deferential standard of review requires that the analysis of each claim begin

with the state court’s analysis.

The post-conviction court found that the attorneys’ testimony was credible and

ruled that the attorneys’ not conducting an investigation into the three witnesses was

a reasonable strategic decision. Strickland cautions that “strategic choices made after

thorough investigation of law and facts relevant to plausible options are virtually

unchallengeable; and strategic choices made after less than complete investigation are

reasonable precisely to the extent that reasonable professional judgments support the

limitations on investigation.” 466 U.S. at 690S91. The required extent of counsel’s

investigation is discussed in Hittson v. GDCP Warden, 759 F.3d 1210, 1267 (11th Cir.

2014), cert. denied sub nom., Hittson v. Chatman, 135 S. Ct. 2126 (2015), as follows:

[W]e have explained that “no absolute duty exists to investigate

particular facts or a certain line of defense.” Chandler, 218 F.3d

at 1317. “[C]ounsel has a duty to make reasonable investigations

or make a reasonable decision that makes particular

investigations unnecessary.” Strickland, 466 U.S. at 691,

104 S. Ct. at 2066 (emphasis added). “[C]ounsel need not

always investigate before pursuing or not pursuing a line of

defense. Investigation (even a nonexhaustive, preliminary

investigation) is not required for counsel reasonably to decline

to investigate a line of defense thoroughly.” Chandler, 218 F.3d

at 1318. “In assessing the reasonableness of an attorney’s

investigation . . . a court must consider not only the quantum of

evidence already known to counsel, but also whether the known

evidence would lead a reasonable attorney to investigate

further.” Wiggins, 539 U.S. at 527, 123 S. Ct. at 2538.

Colbert cannot meet his burden merely by showing that the avenue chosen by

counsel proved unsuccessful. White v. Singletary, 972 F.2d 1218, 1220S21 (11th Cir.

1992), explains:

The test has nothing to do with what the best lawyers would

have done. Nor is the test even what most good lawyers would

have done. We ask only whether some reasonable lawyer at the

trial could have acted, in the circumstances, as defense counsel

acted at trial . . . . We are not interested in grading lawyers’

performances; we are interested in whether the adversarial

process at trial, in fact, worked adequately.

Accord Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the

obvious: the trial lawyers, in every case, could have done something more or

something different. So, omissions are inevitable . . . . [T]he issue is not what is

possible or ‘what is prudent or appropriate, but only what is constitutionally

compelled.’”) (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).

Based on this controlling precedent, Colbert fails to meet his burden to show

that the state post-conviction court’s decision was either an unreasonable application

of controlling Supreme Court precedent or an unreasonable determination of fact. As

recognized in Burt v. Titlow, 134 S. Ct. 10, 15S16 (2013), an applicant’s burden under

Section 2254 is very difficult to meet:

Recognizing the duty and ability of our state-court colleagues to

adjudicate claims of constitutional wrong, AEDPA erects a

formidable barrier to federal habeas relief for prisoners whose

claims have been adjudicated in state court. AEDPA requires

“a state prisoner [to] 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 . . . beyond any possibility

for fairminded disagreement.” Harrington v. Richter, 562 U.S.

[86, 103] (2011). “If this standard is difficult to meet” — and it

is — “that is because it was meant to be.” Id., at [102]. We will

not lightly conclude that a State’s criminal justice system has

experienced the “extreme malfunctio[n]” for which federal

habeas relief is the remedy. Id., at [103] (internal quotation

marks omitted).

Colbert’s amended application for the writ of habeas corpus (Doc. 5) is

DENIED. The clerk must enter a judgment against Colbert and close this case.

DENIAL OF BOTH

A CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Colbert is not entitled to a certificate of appealability (“COA”). A prisoner

seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s

denial of his application. 28 U.S.C. § 2253(c)(1). Rather, a district court must first

issue a COA. Section 2253(c)(2) permits issuing a COA “only if the applicant has

made a substantial showing of the denial of a constitutional right.” —To merit a COA,

Colbert must show that reasonable jurists would find debatable both the merits of the

underlying claims and the procedural issues he seeks to raise. See 28 U.S.C.

§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d

926, 935 (11th Cir 2001). Because he fails to show that reasonable jurists would

debate either the merits of the claims or the procedural issues, Colbert is entitled to

neither a COA nor leave to appeal in forma pauperis.

A certificate of appealability is DENIED. Leave to appeal in forma pauperis is

DENIED. Colbert must obtain permission from the circuit court to appeal in forma

pauperis.

ORDERED in Tampa, Florida, on September 3, 2019.

ADA. getine

§STEVEND.MERRYDAY

UNITED STATES DISTRICT JUDGE

-18-